Amagwula v R

1. [1]

   BASTEN JA: Mr Amagwula (the appellant) seeks to appeal from his convictions on four counts of supplying a prohibited drug contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). There were two grounds of appeal: ground 1 alleged that the trial was a nullity because the appellant had not been properly arraigned; ground 2 alleged a miscarriage of justice arising from events occurring in the course of the trial.

Factual background

1. [2]

   The charges laid against the applicant arose out of a search of his residence undertaken on 4 April 2012. Police located, in the ceiling of the kitchen, a red “makeup bag” wrapped in plastic. The makeup bag was secured with a padlock. Inside the bag was a set of electric scales and a number of packages wrapped in plastic. The appellant’s fingerprints were later found on a number of resealable plastic bags within the red makeup bag. Three sums of money were found in the main bedroom, namely $US6,637, $A1,300 and $1,420 in South African rand. The drugs contained in the red makeup bag formed the basis of four counts of deemed supply, namely:

2. [3]

   The other occupants of the residence were the appellant’s wife and his two young children. The appellant’s wife denied (i) having seen the red makeup bag before it was located by police; (ii) having put the bag or any other item through the manhole in the kitchen ceiling, and (iii) having seen the appellant place anything through the manhole in the kitchen ceiling.

3. [4]

   It is convenient to address aspects of the procedural history by way of background to ground 1 in the notice of appeal.

Procedural history

1. [5]

   Ground 1 alleged that the trial was a nullity because the applicant was not properly arraigned because he had not personally answered “not guilty” as each charge was read to him. The factual premise for this submission was that when the charges were read out the judge directed that a plea of not guilty be entered in relation to each count. At that stage Mr Amagwula was standing at the bar table and was not in the dock. He had already addressed the Court, seeking an adjournment on the basis that he was unrepresented and could not get a fair trial. In the course of addressing the Court, he stated: [1]

2. [6]

   The judge having delivered a brief judgment rejecting the adjournment application, there was discussion as to the expression of the charges in the indictment (which will be noted below) and the judge stated: [2]

3. [7]

   The judge then explained to Mr Amagwula, in terms commonly used to self-represented parties, how the trial would proceed and how, procedurally, the accused should conduct himself. There was a short adjournment while the jury panel was assembled in court. The arraignment process was repeated before the jury panel. Again the judge directed a plea of not guilty be entered in respect of each count as it was read out.

4. [8]

   It is helpful to set out some of the earlier procedural stages in the case. The present relevance of the procedural history is with respect to ground 1; it depends upon the Director’s argument that ground 1 is without substance because, to the extent that the failure to require the appellant to personally indicate his plea, that had in fact happened with respect to a previous form of the indictment in identical terms, with the exception of a missing letter from the description of the drug in count 4.

5. [9]

   The procedural history is also relevant to ground 2, which alleged a miscarriage based on the lack of a fair trial through the applicant being unable to conduct his defence unrepresented. That ground did not in terms challenge the refusal of the trial judge to adjourn the trial, but, for example, in ground 2(ii), alleged a miscarriage arising from “the refusal to arrange for Mr Ozone to attend court to be examined and cross-examined”. The person identified as “Mr Ozone” was a police informant who had been involved in a separate charge against the appellant, which had been separated from the present trial. It appeared in the course of the trial that the appellant’s defence was that the drugs found on his premises on 4 April 2012 had been “planted” there by Mr Ozone.

6. [10]

   In considering an application to vacate the hearing on 25 October 2017, the trial judge referred to a wide ranging police undercover investigation that commenced in 2011. At or soon after the time of his arrest (on 4 April 2012) the appellant was charged with having been involved on 19 January 2012 in the supply of a commercial quantity of methylamphetamine. That charge was count 1 on an indictment presented in October 2012 and was referred to as “the January offence”. The other four counts on the indictment were apparently in similar, if not identical, terms to counts 1-4 of the indictment on which the appellant was tried in October 2017. At some point in mid-2014 count 1 was separated from the present counts. It involved a co-accused. The trial on count 1 took place in September 2014, resulting in guilty verdicts in relation to both the appellant and the co-accused. As will be considered shortly, the appellant was represented throughout the proceedings up to his sentencing in May 2015, when Norton DCJ imposed a non-parole period of 4 years 2 months 12 days, to date from 4 April 2012, the appellant having been in custody, bail refused, since the time of his arrest.

7. [11]

   Following the sentencing for the January offence, the indictment, now limited to the offences of 4 April 2012, was listed for trial on 25 May 2015 before Sides DCJ. The appellant was represented by counsel, who applied to vacate the trial on a number of grounds. The prosecution opposed the application, but the matter was adjourned to 4 April 2016. The matter was originally listed before Colefax DCJ on that date, but was referred to Marien DCJ and a further attempt was made to commence the trial. However, upon the appellant’s counsel and solicitor seeking leave to withdraw for ethical reasons (which was granted), the trial date was again vacated. A further date was fixed by Colefax DCJ, namely 6 February 2017. That date was confirmed by Sides DCJ on 5 December 2016, following a case management hearing. The trial was to be given priority on that date.

8. [12]

   On 6 February 2017, Culver DCJ had the appellant arraigned. However, counsel and solicitor had withdrawn earlier that morning and the appellant appeared unrepresented. The charges were read and the appellant responded “not guilty” to each count. [3] The appellant sought an adjournment, which was granted until the following day. The reason given on 6 February by counsel seeking to withdraw was that the appellant had refused to sign instructions which would allow them to conduct a defence. [4]

9. [13]

   On 7 February the matter was listed before Sides DCJ who declined to hear further argument as to a vacation of the trial, but apparently adjourned the matter to 9 February to allow the appellant to provide a list of witnesses he wanted subpoenaed to give evidence on his behalf.

10. [14]

    On 9 February Armitage ADCJ gave the appellant “one last chance” to see if he could obtain legal representation and stood the matter over to 13 February.

11. [15]

    On 13 February the appellant’s previous counsel appeared, but following a conference with the appellant declined to appear further. [5] After discussion, the trial was again vacated and listed for 16 October 2017. There were further attempts at case management, the appellant being unrepresented on each occasion. On 17 October, the matter was listed before Bennett DCJ who gave directions for further documents to be supplied to the appellant and listed the matter to commence on 23 October 2017 before Colefax DCJ.

12. [16]

    After recounting those factors, the appellant’s counsel in this Court conceded that the appellant “was given ample opportunity to try and arrange representation at public expense.” He also accepted that there was “no suggestion that he was subject to any unfairness merely because he was without legal representation.” It was entirely understandable, given the history of the matter, that the trial judge refused a further application to vacate the hearing and that there was no challenge in this Court to that refusal.

Ground 1 - arraignment

1. [17]

   The question raised by ground 1 was whether the decision of the trial judge to direct that pleas of not guilty be entered for the appellant rendered the trial a nullity. The ground thus “involves a question of law alone” and the appeal may be brought as of right. [6]

2. [18]

   The appellant was arraigned on an indictment dated 23 October 2017. There was no challenge to the validity of that indictment. The appellant had earlier been arraigned on an indictment dated 2 February 2017, before Culver DCJ, for the purpose of giving pre-trial directions. There was no challenge to the validity of that indictment, nor to the process of arraignment on that occasion, when the appellant had personally entered pleas of not guilty to each charge. On one limb of the Director’s defence of the trial process, reliance was placed upon the February arraignment as being a sufficient and proper arraignment for the purposes of the trial. On that approach, the subsequent arraignment on 23 October, even if flawed, was otiose and had no legal consequence. In R v Janceski, [7] a case where the accused had been re-arraigned at the commencement of a trial on an invalid indictment, Howie J, referring to an earlier indictment, stated, “[t]hat indictment had not been spent because the trial upon it concluded without verdict.” He further noted: [8]

3. [19]

   There are difficulties, perhaps not insuperable, in adopting that approach in the present case. First, as in Janceski, the prosecutor did not rely upon the earlier (February) indictment, but presented a new document to the court. The consequence of such a process, which is the general practice in this State, is unclear. Now that pre-trial case management is the norm, it is necessary for an accused to be arraigned on an indictment before orders are made and directions given. Accordingly, arraignment is an early step in the process. Why, in the absence of amendment, the Director considers it necessary, or indeed appropriate, to present a further indictment on the same charges at the commencement of the trial is unclear. Where there is an unconcluded proceeding on foot, it might be thought to be an abuse of process, absent a statutory requirement, to commence a second proceeding on the same charges. However, the matter need not be pursued, because that was not this case.

4. [20]

   The second difficulty in treating the trial as having proceeded on the February indictment is that the prosecutor expressly identified the October indictment as an amended document. The amendment was in fact trivial: in the February indictment the drug in count 4 had been identified as “methorpan”, a typographical error which was corrected in the October indictment to read “methorphan”. [11]

5. [21]

   With respect to the amendment of an indictment, the Criminal Procedure Act 1986 (NSW) provides:

6. [22]

   When the prosecutor presented the amended indictment, the judge required that the amendment be initialled by a person with authority to make the amendment. It is clear that the prosecutor had leave of the Court pursuant to s 20(1)(a) to make the amendment.

7. [23]

   In terms of the three events which may complete the proceedings on an indictment, noted by Howie J in Janceski, amendment is not identified. That is presumably because the original indictment remains on foot, following amendment.

8. [24]

   The third difficulty with adopting the submission that the arraignment in February 2017 was sufficient is the requirement of the Criminal Procedure Act that following an earlier arraignment, there is to be re-arraignment “when the jury is empanelled”. Thus, s 130 provides:

9. [25]

   Thus, where the challenge is not to the indictment, but to the validity of the arraignment, the further arraignment was required by statute. Accordingly, it is that arraignment which should be addressed for the purposes of ground 1 of the appeal.

10. [26]

    As noted by Beazley JA in GG v The Queen, [12] the term “arraignment” is not defined in the Criminal Procedure Act. Archbold, Criminal Pleading, Evidence & Practice [13] states that the process of arraignment involves:

11. [27]

    The direction by the judge that a plea of guilty be entered with respect to each count did not follow this course. However, it does not follow that everything which occurred thereafter was a nullity. In effect, it is the consequence of the process adopted by the trial judge which is at the heart of ground 1.

12. [28]

    First, it is clear that the requirement for re-arraignment is provided by statute and the consequence of the precise procedure for arraignment under the general law not being followed will depend, at least in part, on the proper construction of the statutory provision. That construction should depend upon the apparent purpose of requiring re-arraignment, in the context of a criminal trial. [14]

13. [29]

    Section 154 of the Criminal Procedure Act identifies the effect of a plea of not guilty on arraignment:

14. [30]

    As noted by Howie J in Janceski, answering to the indictment on arraignment has that effect, whether the arraignment takes place before the jury panel or not. [15] Howie J also noted:

15. [31]

    The procedure adopted in Williams was further from usual practice than is the present case. A month before his trial, the accused had appeared to stand trial, and had been called upon to enter the dock and identify himself, which he did. Counsel then sought an adjournment and neither the arraignment nor the trial proceeded on that day. The statement by counsel for the defendant involved “a clear intimation that the defendant intended to contest the charge and that he proposed to plead not guilty to the indictment.” [17] A month later the trial was relisted, and proceeded directly to the process of empanelling the jury. That being done, the clerk read out the terms of the indictment and continued: [18]

16. [32]

    Shaw LJ, speaking for the Court (Scarman and Shaw LJJ and Nield J) then observed:

17. [33]

    On appeal, Mr Williams took the point that “the omission of any formal arraignment, with the consequence that no plea was taken, is fatal to the validity of the trial.” [19] He relied upon Reg v Ellis: [20] that case was distinguished in Williams, the Court stating: [21]

18. [34]

    The Court in Williams took a different view of a plea of not guilty which is “vicariously offered or tacitly conveyed”, noting that it was “difficult to conceive what possible prejudice to an accused person could derive from such a procedure.” [22] That plea contained no confession of guilt; quite the contrary.

19. [35]

    The Court then extracted a passage from Sir James Fitzjames Stephen, History of the Criminal Law of England, to the following effect: [23]

20. [36]

    The Court then noted that “[i]nsistence on an express plea of not guilty by the defendant himself is no longer a necessary safeguard of justice where that is the intended plea and where the ensuing proceedings are precisely what they would have been if the accused had himself made the plea in plain terms.” [24] The Court also referred to United States authority for the proposition that arraignment and even the plea may be waived in criminal cases. [25] The Court adopted that position “as being consonant with the law of England as well as with good sense for no detriment can ensue to a defendant from the application of these principles.” [26] The history of arraignments was recounted in similar terms by the Victorian Full Court in R v Talia. [27]

21. [37]

    The requirement for arraignment is now found in statute (Criminal Procedure Act, s 130(3)), but the procedure for arraignment is not specified. It may be assumed, therefore, that the legislature intended no change in the manner of conducting an arraignment under the general law. Although it was and remains common practice to require the accused to plead personally to each count in an indictment, under the general law, a failure in that regard did not vitiate the ensuing trial, so long as it was clear that the accused knew the contents of the indictment and in fact intended to plead not guilty.

22. [38]

    The only other function of a plea being taken before the jury panel (and it had to be taken before a jury was empanelled as that would not occur if the plea was guilty) was to ensure that the jury understood that the accused had placed himself in their hands. However, that function was served by the judge stating, immediately the arraignment had been completed: [28]

23. [39]

    Whether or not there was such a practice and whether or not it was an appropriate practice, it is clear that the jury were left in no doubt as to the nature of the charges and the plea of not guilty.

24. [40]

    Applying the principles in Williams, the expression of the plea by the accused is no longer a necessary safeguard of justice; the plea was intended and the ensuing proceedings were precisely what they would have been had the plea been made by the accused himself. Furthermore, the accused had in fact expressly made such a plea to an earlier indictment in identical terms; his intention to protest his innocence had been reiterated minutes before the October arraignment in an exchange with the trial judge, which indicated an unequivocal intention to plead not guilty. Finally, the step taken by the trial judge of directing pleas of not guilty, and the judge’s statement to the jury, were made in the presence of the accused; to the extent that he had a right to enter the pleas personally, his silence in the face of the procedure adopted in his presence before the jury should be treated as a waiver of that right.

25. [41]

    Given the absence of any prejudice to the accused in the procedure in fact adopted, and absent any statutory implication that a different procedure was required to ensure the validity of the trial, there was no miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act 1912 (NSW) in the judge taking the step of directing the entry of the plea. Ground 1 must be rejected.

Ground 2

1. [42]

   As noted above, there were five limbs to ground 2. Ground 2 was carefully and properly drawn in terms which identified each element as giving rise to a miscarriage of justice. These may first be examined separately and then cumulatively. The appellant required leave to pursue this ground.

(i) the applicant proving unable to conduct his defence as a result of being unrepresented

1. [43]

   As noted above, the first limb of ground 2 was carefully drafted so as not to indicate, directly or by implication, that the refusal by the trial judge to adjourn the hearing because the accused was unrepresented was challenged. The submissions conceded, correctly, “that this was a consequence of his own decisions to withdraw instructions from previous representatives.” [29] To that it may be added that, as the respective counsel and solicitors made clear in withdrawing on 6 February 2017, and again shortly before the trial commenced, it was the failure of the accused to give written instructions which would permit counsel to run the trial which led to their withdrawal. It was submitted that the trial was unfair because the accused effectively declined to cross-examine police witnesses, or to act in what may have been his own interests.

2. [44]

   It is clear from the exchanges with the judge that the accused was, as the judge surmised, an intelligent man who was well capable of speaking for himself when he deemed it appropriate in his own interest. He made it clear that his defence turned on the proposition that there was a conspiracy between the police and the man known as Ozone. His case appears to have been that the Ozone (a pseudonym or nickname [30] ) was a Nigerian who was due to be deported and, to forestall that event, became a police informant. [31] Ozone, in collusion with police, planted the drugs in the Amagwula residence. The police, on his case, were responsible for planting fingerprints on the plastic bags. He told the jury that he could not call evidence to support that case because he had sought to have an investigation into Ozone “that was ordered in 2015” and was not done.

3. [45]

   The approach the Court should adopt in determining whether the accused was able to run his case requires an assessment, as with claims with incompetence of counsel, by reference to the fairness of the process. [32] In the case of counsel, the court will not assess the correctness of a tactical decision made by counsel which is open to question. [33] In this case, there were two categories of tactical decision made by the appellant himself. The first tactical decision was to refuse to give instructions to counsel to run his case. Counsel had been made available and had returned after once withdrawing. There was no hasty or ill-informed decision; it was clearly a deliberate decision made in the knowledge that, as he had been warned by at least one judge, an adjournment would not necessarily result in bail or parole being granted and, if he refused the assistance of counsel, he would be required to run the case himself.

4. [46]

   The second category of decisions involved his choice as to how to run the case. It may be assumed from the absence of counsel and from his own limited cross-examination of police witnesses that he had no independent material to put forward to support his conspiracy theory and alleged concoction of fingerprints by the police. It also appears that he had no evidence that Ozone had in fact planted the drugs. In short, there was no unfair process, but rather a series of calculated decisions by the accused. That circumstance does not give rise to a miscarriage of justice.

(ii) refusal to arrange for Mr Ozone to attend court to be examined and cross-examined

1. [47]

   This ground was carefully formulated; it tacitly acknowledged that for a sound forensic reason a subpoena could have been issued to require Mr Ozone’s attendance at the trial. There had been ample opportunity prior to the commencement of the trial for the issue of a subpoena to Mr Ozone, either when the appellant was represented or thereafter.

2. [48]

   At the beginning of the trial, on 23 October 2017, in the absence of the jury the appellant stated that he had not been targeted by the police in relation to the suspected drug activity. He continued: [34]

3. [49]

   The following day, after the trial had commenced, but in the absence of the jury, and shortly before the luncheon adjournment, the judge told the appellant that he would ask him at 2 o’clock if he had a list of witnesses that he would wish “even at this stage, for consideration to be given for a late subpoena to be issued.” [35] On returning after the luncheon adjournment, the judge immediately asked if he had such a list. The appellant responded: [36]

4. [50]

   Following a discussion as to the tender of a police log, the appellant returned to the question of Mr Ozone’s relevance. The prosecutor noted that Mr Ozone had been a witness for the prosecution in the trial with respect to knowing involvement in the January supply offence. A copy of the sentencing judgment in that matter was provided to the judge. Discussion continued after the luncheon adjournment: [38]

5. [51]

   Submissions for the appellant in this Court stated that he “repeatedly asserted that Mr Ozone would be required for cross-examination in order that he be able to put his [the appellant’s] case to the jury.” [39] It was also submitted that “the appellant was clearly suggesting Mr Ozone, either with or without the collusion of the police, had placed the drugs in the roof cavity [of the appellant’s kitchen].” [40] However, it is far from clear that the appellant did want Mr Ozone called for cross-examination where he (i) had taken no steps to achieve that in the past, (ii) repeatedly referred to the need for the prior investigation in Nigeria, (iii) declined to provide a list of witnesses, including Mr Ozone (merely stating that if he did produce a list Mr Ozone would be on it) and (iv) declined to put essential questions to the police, on the premise that they were involved in a conspiracy with Mr Ozone. The appellant’s submission that “it was incumbent on [the judge] to ensure Mr Ozone was brought to court, if he could be, in order that the appellant be able to examine him in an attempt to provide some factual basis for his ultimate contention” was untenable. The submissions further referred to “the hypothesis that Mr Ozone was responsible for the drugs in the [roof] cavity”, an hypothesis which, it was said, could only properly be put before the jury if Mr Ozone attended. [41]

6. [52]

   Given the failure of the appellant to cross-examine, both the prosecutor and the judge put basic questions to the police officers, some of whom denied knowledge of Mr Ozone and all denied involvement in planting the drugs in the kitchen roof cavity.

7. [53]

   As counsel for the Director submitted, (i) the Court had no power to direct an investigation to be carried out in Nigeria, (ii) there was no part of the prosecution case which involved Mr Ozone, (iii) there was no indication as to what evidence might conceivably have been obtained from Mr Ozone if called as a witness and if cross-examined by the appellant, and (iv) even on the appeal, when the appellant was represented by senior counsel, there was no hint as to what evidence could potentially have been given.

8. [54]

   If the appellant had provided further evidence which he had been unable to call at trial, this Court would have been required to consider whether, taken with the evidence called at trial, there was a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant. [42] Mason and Deane JJ in Gallagher identified the requisite criterion as there being “no significant possibility that the unavailability to the applicant of the new evidence at the time of the trial had resulted in a miscarriage of justice in the relevant sense.” [43] The issue in Gallagher was whether a possibility of a different outcome would suffice, or whether a likelihood was required; the possibility test was recently affirmed in a slightly different statutory context in Van Beelen v The Queen. [44] The point for present purposes is that the allegation of miscarriage does not reach the stage of assessing the possible effect of evidence which had been unavailable at trial. Taken in isolation, there is no basis upon which to uphold ground 2(ii).

(iii) evidence of fingerprints and photographs taken whilst applicant in police custody for a prior matter

1. [55]

   The complaint with respect to this evidence was that the requirement by the trial judge that the prosecution prove the provenance of the fingerprints used for comparison with the fingerprints on the plastic bags containing drugs led to the jury learning that the appellant had been subject to a police investigation in September 2009, when fingerprints and photographs had been taken. The appellant complained on appeal that these steps were unnecessary, because there had never been a challenge to the finding of his fingerprints on the plastic bags found in the roof cavity of his home.

2. [56]

   Given the approach of the appellant at the trial, which involved putting the prosecution to proof by his plea of not guilty, but declining to ask questions in cross-examination of most of the witnesses, the trial judge was correct to insist that each relevant aspect of the prosecution case be properly proved. In fact, when the appellant came to address the jury, he made a direct attack on the identification of his fingerprints. [45] In the course of his address, the appellant sought to turn to his advantage the fact that the fingerprints used for comparative purposes had been obtained three years earlier.

3. [57]

   In the course of the summing-up, there was little reference to the time at which the fingerprints were taken. What was said occurred in a general direction as to speculation, in the following terms: [46]

4. [58]

   Appropriate proof of the comparison of fingerprints undertaken at trial was an entirely proper mode of proceeding; there was no basis for any inference that there was a miscarriage of justice because the jury were told that Mr Amagwula had been fingerprinted and photographed by police three years earlier. Although potentially prejudicial, the information was properly led by the prosecutor and no claim of prejudice was raised at trial; if it had been it could have been dealt with by a further direction.

(iv) content of prosecution address

1. [59]

   Although the prosecutor had indicated that he did not intend to address, the judge had responded that it was appropriate that he address the jury. There is no complaint about that step in the process. Rather, the complaint is made that the prosecutor then overstepped the mark, making intemperate and inflammatory remarks and belittling observations about the appellant’s case.

2. [60]

   The address, concededly, was brief. For the most part it was a straightforward, unembellished summary of the factual material. The points of embellishment were as follows: [47]

3. [61]

   The prosecutor then referred to the material found in the red make-up bag, which was said to be worth $260,000-$350,000 and the small amounts of heroin and cocaine found in the bedroom occupied by the appellant, and continued: [48]

4. [62]

   The use of colloquialisms in addressing a jury can be fraught for a prosecutor. However, there was nothing that qualified as intemperate or inflammatory, or belittling of the accused’s case. It was important that the jury be directed as to the difference between unsubstantiated allegations which had been made by the appellant in their presence, and the evidence. There was, as the prosecutor rightly noted, no shred of evidence to support the conspiracy theory proposed by the appellant. This particular must also be dismissed.

(v) remarks of trial judge towards the appellant and about his closing address

1. [63]

   The submissions acknowledged that the “truculent attitude” of the appellant “might test the patience of any trial judge.” There was also acknowledgment of the frustration of the judge at having to revisit on several occasions remarks which had been the subject of a ruling in the absence of the jury, but which were repeated by the appellant in the presence of the jury.

2. [64]

   There is no purpose in setting out the brief passages sought to be relied upon by the appellant in his submissions. There was no substance in the complaints of a miscarriage based upon any observations made by the trial judge to or about the appellant in the presence of the jury. The particular is without substance.

(vi) cumulative effect

1. [65]

   There are circumstances in which an accumulation of unfortunate statements or departures from proper procedure, none of which in themselves demonstrate a miscarriage of justice, can, when taken together, properly be so characterised. That was not this case. The complete lack of substance in most of the complaints provided no basis for an accumulation giving rise to a miscarriage.

2. [66]

   Ground 2 must be rejected.

Orders

1. [67]

   There was limited substance in ground 2, but in circumstances where there had been a difficult trial, albeit a short one, involving an unrepresented accused, and where there has been a serious attempt by counsel to identify potential breaches of fairness in the trial process, it is appropriate that the Court grant leave to appeal. Accordingly there should be a grant of leave with respect to ground 2. Nevertheless, both grounds must be dismissed; the appeal should be dismissed.

2. [68]

   BUTTON J:

Introduction

1. [69]

   This application by Mr Chidi Gozie Amagwula for leave to appeal against conviction is founded on two separate propositions: first, that the irregular way in which his arraignment occurred at the commencement of a trial by jury rendered the subsequent trial a nullity; and secondly, that, whilst unrepresented, he was subjected to a trial so unfair that it constituted a miscarriage of justice.

2. [70]

   The first proposition in my opinion raises a pure question of law, but the second raises a question of mixed law and fact; for convenience, I shall simply refer consistently to Mr Amagwula as “the appellant”.

3. [71]

   The appellant stood trial before Judge Colefax SC (the trial judge) and a jury of twelve in the District Court at Parramatta on an indictment containing two counts of supplying a prohibited drug, and two counts of supplying a commercial quantity of a prohibited drug, contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA).

4. [72]

   The trial commenced on 23 October 2017, and the appellant was found guilty of all 4 counts on 2 November 2017.

5. [73]

   The prohibited drugs were located in a make-up case, hidden in the roof cavity (accessed by a manhole) of the appellant’s home during the execution of a search warrant on 4 April 2012. The Crown case proceeded on the basis of the “deeming provision” in s 29 of the DMTA. The offences consisted of the possession for supply of:

6. [74]

   It is immediately noteworthy that the trial by jury of the appellant concluded five years and six months after he had been arrested and charged with the offences in question. It is even more remarkable that he had been in custody for all of that time.

7. [75]

   The appellant was convicted, and sentenced by his Honour on 20 April 2018 to an aggregate sentence of imprisonment of 12 years with a non-parole period of 9 years, to commence on 4 April 2014. No application for leave to appeal against that sentence has been made to this Court.

Procedural background to trial

1. [76]

   In order to explain my approach to the second ground, it is necessary first to set out in quite some detail all that took place between the arrest of the appellant and the commencement of the trial. Much of the following chronology is derived from material set out at a pre-trial proceeding before Judge Culver on 6 February 2017, the correctness of which was not disputed in this Court.

2. [77]

   On 4 April 2012, the police executed a search warrant at the home where the appellant resided with his wife and two children.

3. [78]

   The police seized the drugs that led to the four counts set out at [73] of this judgment (the April supply). A set of scales and cash in various denominations of Australian, US and South African currencies were also seized. Fingerprints of the appellant were said to be on at least the bag containing prohibited drugs in the roof cavity. In other words, the Crown case was straightforward.

4. [79]

   The appellant was then arrested and charged with five counts of supply. One count related to a separate “actual” supply alleged to have occurred previously on 19 January 2012 (the January supply). The remaining charges were identical to the four counts listed above at [73] of this judgment, except the drug in the fourth charge was spelt as “Methorpan”.

5. [80]

   On 29 April 2012, the Supreme Court refused the appellant’s bail application.

6. [81]

   On 12 September 2012, the matter was before the Local Court at Burwood, and all charges were committed for trial. The appellant was represented by a solicitor, Mr Tosevic.

7. [82]

   On 18 October 2012, the appellant was arraigned in the District Court at Parramatta. He was again represented by Mr Tosevic. The indictment presented contained the five counts described in [79] of this judgment (that is, the drug in the fourth count was spelt as “Methorpan”). The appellant pleaded not guilty to all five counts. Whether those pleas came personally from the appellant, or were entered on his behalf, is not clear on the material before this Court, but I presume that it was the former.

8. [83]

   The matter was then listed for trial on 18 March 2013 (the first trial listing).

9. [84]

   On 18 March 2013, Mr Williams of counsel appeared for the appellant, instructed by Mr Tosevic. The parties indicated they were ready to proceed at 2 pm that day.

10. [85]

    On 19 March 2013, the following day, there were no judges available to hear the matter. The matter was adjourned for one more day to 20 March 2013 for trial before Judge North.

11. [86]

    On 20 March 2013, Judge North indicated that he had commitments that would require a five day break during the trial. The list judge, Judge Armitage, then vacated the trial date.

12. [87]

    At the same time, the count relating to the January supply was severed from the remaining four counts, and was listed for trial on 8 October 2013. This trial featured a co-accused, Mr Osuamadi.

13. [88]

    The trial of the remaining counts relating to the April supply was listed to commence on completion of the trial for the January supply count; that is, some time after mid-October 2013 (the second trial listing).

14. [89]

    On 10 October 2013, Mr Williams, instructed by Mr Tosevic, appeared again for the appellant. There was a voir dire in the trial of the January supply in relation to the admissibility of evidence from a registered police source, a Mr Ozone. Judge Armitage ruled that the evidence was admissible.

15. [90]

    On 11 October 2013, the appellant made an application for separate trials with regard to the January supply (that is, the appellant sought a trial separate from the trial of Mr Osaumadi). That application was refused.

16. [91]

    On 14 October 2013, Mr Williams informed the Court that the appellant had withdrawn his instructions, and no longer wished to have Mr Williams represent him. The matter than returned to the then-list judge, Judge Sides QC.

17. [92]

    Judge Sides vacated the trial of the January supply. His Honour remarked that it appeared that the appellant had sacked his lawyers to circumvent the refusal of the application for separate trials. His Honour adjourned the matter to 17 October 2013 for mention.

18. [93]

    On 17 October 2013, Mr Tosevic appeared again for the appellant. The matters were listed for trial on 18 November 2013 (the third trial listing). The first trial – featuring two accused persons and relating to the January supply – had an estimate of seven to ten days. The second trial – with only the appellant as the accused, and relating to the April supply – had an estimate of three to five days.

19. [94]

    On 18 November 2013, the January trial with the two co-accused proceeded to trial before Judge Craigie SC. However, the jury was discharged on two separate occasions. The registered source, Mr Ozone, gave evidence in these aborted trials.

20. [95]

    After the second jury discharge, the trial of the January supply was then listed for trial on 1 September 2014 before Judge Sides. Mr Crawford-Fish appeared at that stage as defence counsel, with Mr Tosevic continuing to instruct.

21. [96]

    On 3 September 2014, that trial commenced before Judge Norton, with the same two legal representatives for the appellant. The jury found the appellant and the co-accused guilty. The matter of the January supply was then listed for sentence on 12 December 2014.

22. [97]

    On 2 October 2014, Mr Tosevic appeared for the appellant with regard to the April supply. This matter was listed for trial on 25 May 2015, with an estimate of five to seven days (the fourth trial listing).

23. [98]

    On 12 December 2014, that being the date listed for the proceedings on sentence for the January supply, Mr Crawford-Fish and his instructing solicitor sought leave to withdraw. The January supply was then stood over for sentence on 27 March 2015.

24. [99]

    For that offence, the appellant was finally sentenced on 1 May 2015 (that is, at least seven months after the jury had returned its verdict of guilty) to a head sentence of 6 years with a non-parole period of 4 years 2 months and 12 days, commencing on 4 April 2012.

25. [100]

    On 25 May 2015, the April supply came before Judge Sides again. Mr Stitt of counsel, instructed by Ms Dias, appeared for the appellant. Counsel made an application to adjourn the remaining trial, on the bases that counsel had only just been briefed; the trial was complex; the appellant was content to remain in custody notwithstanding the inevitable delay; the defence opposed the Crown’s foreshadowed tendency evidence; there was a need to investigate the involvement of the registered source in “the Biafran Alliance”; and lastly, there had been an appeal lodged to the Court of Criminal Appeal in relation to the conviction for the January supply.

26. [101]

    Judge Sides granted the application and adjourned the matter for trial on 4 April 2016 (the fifth trial listing).

27. [102]

    On 4 April 2016, the matter came before the trial judge, Judge Colefax. Mr Stitt (instructed by Ms Dias) appeared for the appellant again. The appellant made an application to vacate the trial, on the basis that the Crown would no longer rely on tendency evidence (from the January supply), and the defence could not as a result now meet the Crown’s case. His Honour rejected the application, and the matter was referred to Judge Marien SC for trial on 5 April 2016. Defence counsel then made further applications to adjourn the matter and for a permanent stay, both of which were refused by the trial judge.

28. [103]

    On 6 April 2016, Judge Marien granted the defence team leave to withdraw from the matter due to ethical difficulties. The matter returned to Judge Colefax, and his Honour adjourned the matter to 6 February 2017 for trial (the sixth trial listing).

29. [104]

    On 5 December 2016, both parties indicated that the matter was ready to proceed. Although it is not entirely clear whether the appellant was represented on that day, on balance it appears from subsequent events that he was.

30. [105]

    On 6 February 2017, the matter came before Judge Culver. The appellant appeared unrepresented. Earlier that morning, leave had been granted to his then-solicitor (Ms Hempel) and counsel (Mr Buckman) to withdraw, on the basis that the appellant had refused to sign instructions.

31. [106]

    The Crown prosecutor indicated to the Court that the matter was ready to proceed from his perspective. He also told the Court that the legal team of the appellant had indicated to him before they withdrew that the defence case would be an “explanation case”. However, the Crown prosecutor explained that he was not sure whether the appellant would be disputing the presence of his fingerprints on the bag found in the roof cavity of his home, or that he would be asserting that he was “set up by a political opponent” from his country of origin, Nigeria.

32. [107]

    The Crown prosecutor presented an indictment for the four counts relating to the April supply. The indictment was dated 2 February 2017. The appellant was then arraigned on that indictment before Judge Culver. At that stage, the drug recorded in the fourth count on the indictment remained typed as “Methorpan” (in fact, the drug that appears in schedule 1 of the DMTA is “Methorphan”). The appellant personally pleaded “Not guilty” to each of the four counts.

33. [108]

    The appellant sought an adjournment of the trial on the basis that he should be legally represented at trial, and that he was not aware of the details of the Crown’s evidence against him. Her Honour noted that the appellant was sufficiently familiar with his matter and had been represented by various counsel in the past. Her Honour further remarked that the appellant was able to represent himself. The application was refused, and her Honour ruled that the trial would proceed the next day if there was a judge available to hear the matter.

34. [109]

    On 7 February 2017, the matter came before Judge Sides. There was no trial judge available until the next day, and the matter was listed for trial accordingly. The appellant indicated to the court that he was not in a position to defend himself whilst in gaol and that “[f]or this trial to go ahead, there are witnesses that would need to be subpoenaed and … what they’ve got to say is very important in this matter …” (AB 793). His Honour advised the appellant to provide to the Court the following day a list of witnesses to be subpoenaed.

35. [110]

    On 8 February 2017, due to unavailability of judges, Judge Sides again stood the matter over for trial to the following day. The appellant did not produce a list of witnesses. He indicated again that he would not be able to “run the trial” by himself whilst incarcerated.

36. [111]

    On 9 February 2017, Acting Judge Armitage gave the appellant “one last opportunity” to resolve his differences with Legal Aid, specifically with Mr Buckman and Ms Hempel, who (as I have said) had withdrawn from the matter earlier that week. Failing that, his Honour indicated that the trial would proceed with the appellant unrepresented. The matter was then adjourned to Monday 13 February 2017, in order to allow the appellant to make contact with Legal Aid.

37. [112]

    On 13 February 2017, Mr Buckman and Ms Hempel appeared before Acting Judge Armitage. After a conference with the appellant, Mr Buckman confirmed to the Court that a resolution could not be reached, and that he could not appear for the appellant. Acting Judge Armitage granted counsel and solicitor leave to withdraw again.

38. [113]

    Subsequently, the appellant made an application for an adjournment for various reasons. One of the reasons provided was that an adjournment would allow him to subpoena witnesses, “surveillance evidence”, “phone records”, and “meeting documents”.

39. [114]

    However, when asked about the evidence the witnesses would give, the appellant replied:

40. [115]

    In similar terms, the appellant explained shortly after that “I don’t know what the witness would say… But I need that witness to come and say what he knows or what role he played in all of this” (AB 842).

41. [116]

    Thereafter, the appellant agreed with his Honour’s summary of the defence case: that the appellant “was not responsible for the placement of the drugs in the roof and that he knew nothing about them” (AB 843).

42. [117]

    Subsequently, orders were made to vacate the trial date and to have the matter stood over to 16 February 2017 to be allocated yet another trial date.

43. [118]

    On 16 February 2017, Judge Sides refused to hear an application for bail by the appellant. His Honour listed the matter for trial on 16 October 2017 (the seventh trial listing). The matter was also listed for mention on 16 March 2017.

44. [119]

    On 16 March 2017, the appellant appeared unrepresented. Judge Sides made orders in relation to a timetable for case management as proposed by the Crown. The matter was adjourned to 6 April 2017.

45. [120]

    On 6 April 2017, the appellant appeared unrepresented again. He informed the Court that he had been in contact with Legal Aid and was waiting to be assigned a lawyer. Judge Sides stood the matter over to 20 April 2017.

46. [121]

    On 20 April 2017, the matter was adjourned to 25 May 2017 in order to allow the appellant to respond to paperwork from Legal Aid.

47. [122]

    On 25 May 2017, Mr Reetov, appearing merely as a friend of the Court, confirmed that the appellant had a grant of legal aid, on the proviso that he co-operate with his assigned lawyer, Ms Hempel. The appellant indicated that he did not wish to instruct Ms Hempel.

48. [123]

    On 16 October 2017, the matter came before Judge Bennett SC. The appellant was still unrepresented. The appellant sought to have the trial date vacated, and to be granted bail to allow him to prepare his defence. Both applications were refused. As there was no available judge, his Honour stood the matter over to the following day, and indicated that that the matter would then proceed to trial.

49. [124]

    On 17 October 2017, the appellant appeared unrepresented. He sought to adjourn the matter again to obtain legal advice and prepare his defence. Judge Bennett refused the application for an adjournment, indicating that the matter would proceed to trial the following Monday. Judge Bennett adjourned the matter to 19 October 2017 to ensure that any further material from the Crown could be handed to the appellant.

50. [125]

    On Monday 23 October 2017, the matter was listed to proceed to trial before the trial judge, Judge Colefax. The appellant was still unrepresented. He immediately proceeded to make an adjournment application on the basis that “the registered source … matters for [the appellant’s] defence” and that the involvement of the registered source had not yet been investigated. The relevant extract is as follows:

51. [126]

    Judge Colefax refused the application on the basis that the appellant did not raise any new circumstances since the last refusal on 17 October 2017 by Judge Bennett of the appellant’s adjournment application.

52. [127]

    The Crown prosecutor then presented an indictment; to be clear, no jury panel was present in the courtroom. The Crown prosecutor indicated that that indictment was slightly different from the indictment the appellant was arraigned on in February of that year. The Crown prosecutor explained that the prohibited drug particularised in count 4 had been changed from “Methorpan” to “Methorphan” (that is, in conformity with the DMTA). The relevant exchange was as follows:

53. [128]

    The appellant was then arraigned before his Honour on that indictment. His Honour directed that pleas of not guilty be entered in relation to each count, on the asserted basis that the appellant was not legally represented. In other words, those pleas did not come from the mouth of the appellant. The relevant extract from the transcript is as follows:

54. [129]

    Shortly thereafter, the appellant referred to the “registered source” again:

Aspects of the trial itself

1. [130]

   The jury panel was then brought into Court. The appellant was arraigned in their presence, and a jury of 12 was empanelled. Again, however, pleas of not guilty were not entered by the appellant personally; rather, his Honour directed that pleas of not guilty be entered in relation to each count. The transcript is as follows:

2. [131]

   In the absence of the jury, after its empanelment, the trial judge then explained to the appellant the usual procedures of the trial, including the opportunity for the appellant to call witnesses, and that the appellant had a choice with regard to giving evidence himself. His Honour said:

3. [132]

   The appellant then effectively sought an adjournment in order to issue subpoenas, which the trial judge refused:

4. [133]

   Thereafter, the trial proceeded before the jury. In order to permit the reader to understand the submissions about, and my determination of, the second ground of appeal, it is necessary for me to set out a number of extensive extracts from the trial transcript, not only to show what passed between the trial judge and the appellant, but also to show its context and, to the extent possible by transcript, the atmosphere of the trial.

5. [134]

   On the second day of the trial, the appellant, in effect, sought to challenge the validity of the search warrant on the basis that it was improperly obtained, and, in substance, the appellant sought to stay the proceedings. The relevant extract is as follows:

6. [135]

   In relation to the validity of the search warrant, his Honour then refused the application to stay the proceedings, finding that there was “not sufficiently clear material before the Court to conclude that there was any impropriety in the obtaining of the warrant.” His Honour also found that the alleged provision of information to the police by Mr Ozone was irrelevant to the question of the validity of the warrant.

7. [136]

   With regard to placing the terms of the search warrant before the jury, his Honour was not persuaded that there was “any legitimate forensic purpose favourable to the accused in permitting the warrant to go before the jury”. Rather, his Honour accepted the Crown’s concern that, despite there being no allegation against the appellant of specific drug dealing, the terms of the search warrant may cause the jury to speculate that the appellant was involved in specific dealings. Accordingly, his Honour ordered that the actual terms of the search warrant not be placed before the jury.

8. [137]

   Shortly after, the appellant raised the asserted involvement of Mr Ozone again:

9. [138]

   His Honour then advised the appellant that the chances of conviction were high if he did not call evidence with regard to how the drugs came to be located in the house. Following on, his Honour invited the appellant to provide a list of witnesses with regard to whom the trial judge would consider issuing a subpoena:

10. [139]

    In accordance with that invitation, the trial judge later asked if the appellant had a list of witnesses whom he wished to be the subject of a subpoena to provide. The appellant did not have such a list to provide, but insisted that Mr Ozone needed to be called as a witness. The relevant extracts are as follows:

11. [140]

    On the third day of the trial, the Crown prosecutor indicated that, as foreshadowed in the Crown’s opening, the Crown intended to lead evidence that the fingerprints found on the bag containing drugs were those of the appellant, as confirmed by comparison undertaken by a fingerprint expert.

12. [141]

    However, the Crown prosecutor further indicated that the officer who took the fingerprints of the appellant on the date of his arrest in relation to the April supply (the 2012 fingerprints), Constable Beldon, would not be available to give evidence, because the officer was overseas.

13. [142]

    The Crown prosecutor also explained that the appellant’s fingerprints had previously been on the police database, as they were taken by a Sergeant Poitevan on 8 August 2008 (the 2008 fingerprints). Accordingly, the Crown prosecutor suggested that he would not call Sergeant Poitevan if the appellant was willing to agree that his fingerprints were already on the system.

14. [143]

    However, the trial judge insisted that the Crown be put to strict proof, and that the Crown should find out if there had been a second officer who was present when the appellant’s fingerprints were taken in 2012. The following is the relevant extract:

15. [144]

    Later that day, the trial judge decided that there should be a voir dire with regard to the fingerprint evidence so that his Honour could more carefully consider what to do about it (tcpt, 25 October 2017, p 37(9)-37(18)).

16. [145]

    Several witnesses gave evidence in the trial but the appellant did not cross-examine any of them. With regard to the evidence of Detective Sergeant Landon Clarke (through whom the two CDs recording the execution of the search warrant were tendered), the appellant stated that he did not have any questions for that witness, and that “[t]his whole operation against me is contaminated by Ozone and the police… [m]ainly, Detective Ferfiris and Detective Vanderhelm.” (tcpt, 25 October 2017, p 42(1)-42(10))

17. [146]

    The Crown prosecutor than sought leave to ask further questions. The witnessed was asked whether he “put that red bag in the manhole in the roof?”, and the witnessed replied, “No”. The trial judge then proceeded to ask the witness the following questions:

18. [147]

    The trial judge then asked the appellant if he had any further questions, and the appellant once again raised the matter of Mr Ozone and the two named police officers in the presence of the jury:

19. [148]

    Subsequently, the appellant made an application to vacate the hearing and to permanently stay the proceedings. The basis of this application was “that the whole operation against [the appellant was] contaminated by Ozone and the police involved, mainly Detective Ferfiris and Detective Vanderhelm.”

20. [149]

    The appellant elaborated as follows:

21. [150]

    The Crown prosecutor then explained again the relevance of Mr Ozone to the first trial for the January supply. The Crown prosecutor also explained that, in his submission, Mr Ozone was not relevant to this trial, as the Crown had decided no longer to rely on the facts underpinning the conviction at the first trial as tendency evidence in support of the April supply.

22. [151]

    The relevant exchange between the Crown and his Honour is as follows:

23. [152]

    Subsequently, his Honour delivered a judgment that refused the application of the appellant, but provided a direction that the Crown call the two police officers, Detective Sergeant Ferfiris and Detective Senior Constable Vanderhelm: judgment, 25 October 2017, p 3-5.

24. [153]

    At the end of the third day, the Crown prosecutor tendered a folder containing the fingerprint evidence as an exhibit on the voir dire.

25. [154]

    On the fourth day of the trial, the appellant still had not cross-examined any witnesses, citing the need for legal representation and the involvement of Mr Ozone. The trial judge then indicated that if the appellant did not ask any questions in cross-examination, his Honour would do so himself:

26. [155]

    In relation to the appellant cross-examining the witnesses, the appellant asked the trial judge to “handle the situation”:

27. [156]

    Detective Sergeant Vasilios Ferfiris gave evidence. The appellant did not cross-examine that witness, however, at the close of the evidence-in-chief, the trial judge asked the witness the following questions with regard to the putative planting of drugs:

28. [157]

    Sergeant Mark Portelli, the independent observer of the execution of the search warrant, also gave evidence. There was no cross-examination by the appellant, and the trial judge asked Sergeant Portelli the following questions with regard to the possible planting of drugs and other items:

29. [158]

    Senior Constable Thomas McKinnon, the police officer who operated the video camera during the execution of the search warrant, was also called to give evidence. Towards the end of his evidence-in-chief, the Crown prosecutor asked the Senior Constable about Mr Ozone, and after being prompted by the trial judge, the Crown prosecutor also asked about the possible planting of drugs by Detective Sergeant Ferfiris and Detective Senior Constable Vanderhelm. The evidence was as follows:

30. [159]

    Detective Senior Constable Nadia Vanderhelm also gave evidence that day. The following extract contains the questions asked by the Crown prosecutor in relation to Mr Ozone and Detective Sergeant Ferfiris:

31. [160]

    When asked by the trial judge whether the appellant had any questions for this witness, he said:

32. [161]

    The trial judge did not ask Detective Senior Constable Vanderhelm any questions.

33. [162]

    Thereafter, the trial judge foreshadowed that the Crown prosecutor should give a final address (although the Crown case had not yet closed). The following is the relevant exchange:

34. [163]

    On the fifth day of the trial, the issue of the fingerprint evidence was discussed again. The Crown prosecutor confirmed that Constable Beldon was unable to be called, and proposed that the statement of the Constable with regard to the taking of the 2012 fingerprints be tendered. The Crown prosecutor also stated that the only officer that could be called to give evidence in relation to the taking of the fingerprints of the appellant was Sergeant Poitevan – that is, the officer who took the 2008 fingerprints.

35. [164]

    The trial judge was critical of the absence of Constable Beldon. His Honour took the view that, on the proposed evidence so far, there was an evidentiary gap arising from the absence of Constable Beldon. On that basis, his Honour suggested that the evidence of any fingerprints could well be excluded (tcpt, 30 October 2017, p 157(23)-160(02)) (I interpolate that such a development would obviously have significantly damaged the Crown case).

36. [165]

    On the same day, a voir dire was held with regard to the evidence of the wife of the appellant, Mrs Amagwula. That was with regard to whether or not she should be called upon to give evidence against her husband, in accordance with s 18 of the Evidence Act 1995 (NSW). During the voir dire, the trial judge advised the appellant to give consideration to questions he may wish to ask Mrs Amagwula in cross-examination. Specifically, his Honour said:

37. [166]

    Following on, the appellant explained to the trial judge that Mrs Amagwula would be able to explain the presence of the US dollars, and referenced a “document” in the “Western Australia airport” in support. The Crown indicated that a photocopy of that document was obtained as part of the search. The trial judge told the appellant to do the following:

38. [167]

    The Crown was able to assist the Court and confirmed that enquiries with the Department of Immigration and Border Control (the Department) were made that confirmed that the appellant entered Western Australia through the Perth Airport in 2005, and completed a Passenger Arrival Card, declaring that he had currency of over AUD $10,000: tcpt, 30 October 2017, p 187(1)-187(18).

39. [168]

    The trial judge then directed that the Crown to issue a short service of subpoena upon the delegated officer of the Department: tcpt, 30 October 2017, p 187(20)-187(21)

40. [169]

    Following the evidence-in-chief of Mrs Amagwula, the appellant stated he did not have any questions. In the absence of the jury, the trial judge asked if the appellant wished his Honour to ask Mrs Amagwula about the use of the American dollars for household expenses. The appellant stated that he did wish his Honour to ask such questions, and his Honour did so despite the Crown’s objection. The following is the relevant extract:

41. [170]

    Before the trial judge commenced questioning Mrs Amagwula, his Honour gave the following direction to the jury explaining why a judge might question a witness in the trial of an unrepresented accused:

42. [171]

    The trial judge then questioned Mrs Amagwula in conformity with what his Honour had foreshadowed; that is, with regard to possible sources for the cash other than dealing in prohibited drugs.

43. [172]

    After Mrs Amagwula gave evidence, the Crown in the absence of the jury raised the issue of the fingerprint evidence again. The Crown explained that another police officer took the appellant’s fingerprints in 2009 (the 2009 fingerprints), with regard to charges of which he was ultimately acquitted.

44. [173]

    The Crown sought to remedy the “evidentiary gap” with which the trial judge was initially concerned. The Crown prosecutor submitted that the 2009 fingerprints matched the 2008 fingerprints, and that the police officer from 2009 could identify the appellant in court as having been the person he took the fingerprints from on that earlier occasion.

45. [174]

    However, the trial judge did not accept that the police officer could make an identification after eight years. His Honour maintained the view that the fingerprint evidence as it then was remained inadmissible, as follows:

46. [175]

    On the sixth day of the trial, the Crown prosecutor tendered on the voir dire a statement of Detective Senior Constable Luke Stibbard, the police officer who took the 2009 fingerprints. The Crown also tendered on the voir dire a report of the fingerprint expert that compared the 2009 fingerprints and the fingerprints found on the bag.

47. [176]

    Before proceeding to hear evidence from Detective Senior Constable Stibbard on the voir dire, the trial judge gave the following explanation to the appellant:

48. [177]

    The appellant objected to the admission of fingerprint evidence, and said the following:

49. [178]

    The trial judge nonetheless eventually ruled that the fingerprint evidence was admissible, and it was ultimately placed before the jury in the way foreshadowed; that is, with regard to the April supply of 2012, the jury came to know that the appellant had had his fingerprints taken on an entirely separate occasion, some years before in 2009.

50. [179]

    On the seventh day of the trial, the trial judge gave the following direction to the jury in relation to the fingerprint evidence:

51. [180]

    Detective Senior Constable Vanderhelm was re-called, and at the end of the evidence-in-chief, the appellant made a reference to Mr Ozone as he had done before:

52. [181]

    At the close of the Crown case, the trial judge asked the appellant whether he was proposing to give evidence in his own case. He confirmed that he would not:

53. [182]

    Shortly after that, the trial judge said the following to the appellant in relation to his closing address:

54. [183]

    Before the appellant gave his closing address, the trial judge gave the following direction to the jury, directing them to disregard any “evidence” the appellant may give from the Bar table:

55. [184]

    The Crown prosecutor gave his final address. The following is an extract from the final address, with the portions that form one of the particulars of the second ground of appeal in bold:

56. [185]

    The appellant then gave his closing address. In a nutshell he asserted the following: the appellant was innocent; Mr Ozone was involved with Detective Ferfiris and Detective Vanderhelm in framing the appellant; the Crown was withholding evidence from the jury; the fingerprint evidence was unreliable, especially because the Crown did not present the fingerprint evidence from 2012; the appellant was not able to properly prepare the defence case because he did not have a lawyer; and the seized cash from the appellant’s house was legally obtained and was for family expenses.

57. [186]

    Immediately after the appellant concluded his final address, the trial judge reiterated that the jury were to disregard any assertions made by the appellant unsupported by evidence:

58. [187]

    On the eighth day of the trial, the trial judge provided the jury with his summing-up. During it, his Honour directed the jury to arrive at verdicts strictly on the evidence that was before them. A further direction was given to ignore assertions made by the appellant throughout the trial that did not constitute evidence, including the assertion that Mr Ozone was a police informer.

59. [188]

    The relevant extract is as follows:

60. [189]

    The trial judge also directed the jury to give consideration to the submissions made by the appellant that the police officers and Mr Ozone were involved in a conspiracy against the appellant. The trial judge said:

61. [190]

    Following on, the trial judge also directed the jury to take into account the criticisms by the appellant of the fingerprint evidence:

62. [191]

    The jury then retired to consider its verdicts and later that day returned verdicts of guilty on all four counts.

Grounds of appeal

1. [192]

   In support of the application for leave to appeal against conviction, the following grounds were notified and pressed at the hearing:

Ground 1: The trial was a nullity as the appellant was not properly arraigned.

1. [193]

   In written submissions on behalf of the appellant, it was simply said that statute (in the form of ss 154 and 155 of the Criminal Procedure Act 1986 (NSW) (CPA), understood in the light of the common law) is to the effect that, when arraigned at the commencement of a trial by jury, the plea of not guilty must come personally from the accused. Those sections are as follows:

2. [194]

   It was said that the procedure adopted here – whereby, as I have shown, the trial judge simply “entered” pleas of not guilty on behalf of the appellant, without permitting him to plead himself to the indictment – was without power, unless the accused had failed to answer properly to the counts. Here, however, the appellant was given no chance to answer to the counts at all.

3. [195]

   As for any proposition of the Crown that the appellant had been validly arraigned months beforehand in February 2017, before Judge Culver, it was said that the operative arraignment was that which occurred in the presence of the jury panel. Whether things had been done correctly months beforehand, in the absence of the jury, and by way of an arraignment on a different indictment, was said to be neither here nor there.

4. [196]

   It was accepted by senior counsel that this question in one sense “goes only to the technicalities of the trial”. It was also accepted that there can be no doubt but that the appellant did indeed wish to plead not guilty and contest the charges. Still and all, it was said that an essential precondition to the exercise of jurisdiction by the District Court of New South Wales – a court the jurisdiction of which does not go beyond that conferred by statute – meant that the entirety of the trial was a nullity.

5. [197]

   Reference was made to the well-known decisions of R v Halmi (2005) 62 NSWLR 262; [2005] NSWCCA 2 and R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 for the general proposition that, in criminal proceedings, so-called “technicalities” can nevertheless be important; in particular, they can be important with regard to the question of the valid initiation of criminal proceedings. It was said that the refusal by this Court to countenance what were otherwise unimpeachable proceedings in those two decisions on the basis of a defect in the indictment – whereby a person not authorised to sign it had done so – argues by analogy for nullification in this case.

6. [198]

   Reference was also made to the judgment of Kirby P in R v Birlut (1995) NSWLR 1 at 5 for the general proposition that there are sound policy reasons why insistence on observance of formalities in criminal proceedings should be maintained.

7. [199]

   Finally, it was said that decisions of other jurisdictions pertaining to other statutes dealing with different criminal procedures may be of little assistance: here, the CPA speaks clearly and unmistakably of what is required in order to validly commence a criminal trial by jury in New South Wales.

8. [200]

   In oral submissions, and in resistance to a submission by the Crown prosecutor, the point was developed that, in truth, the indictment upon which the appellant was arraigned at the commencement of the trial was not identical to the indictment upon which he had been arraigned before Judge Culver: not only was it not the same physical document, but also the spelling of the particular of one of the prohibited drugs had been altered.

9. [201]

   It was said that R v Halmi is authority for the proposition that the focus must be upon the presentation of the particular indictment, and the arraignment of the accused upon it, which commences the trial, not any earlier interlocutory process.

10. [202]

    It was said that, if there were to be some reliance on the previous indictment, that could not be called in aid by the Crown here, because leave had never been sought pursuant to s 20 of the CPA to amend it, or to substitute it by a further indictment.

11. [203]

    In oral submissions the point was embraced that, without a properly conducted arraignment in accordance with the CPA at the commencement of a trial by jury, the District Court simply has no jurisdiction to embark upon such a trial.

12. [204]

    Finally on this ground, it was accepted that one can readily think of answers by an accused person to an arraignment that are not strictly responsive by way of being “guilty” or “not guilty”, and that would nevertheless not deprive the District Court of jurisdiction. But I understood the point to be that s 155 of the CPA covers such a situation. And in any event, the point was made that such analogues are not apposite here: in this case, in the presence of the jury, the appellant was simply not permitted by the trial judge to respond to the arraignment at all.

13. [205]

    In oral submissions in reply, senior counsel made it clear that his primary submission is that, in the absence of the appellant having been given an opportunity to answer orally at the arraignment at the commencement of his trial, the District Court lacked jurisdiction to conduct it, and that trial should be quashed as a nullity. In the alternative, if what occurred here could somehow be characterised as amendment of, or substitution for, a previous operative indictment (propositions that were of course resisted), the way that occurred was so defective as to amount to a miscarriage of justice.

14. [206]

    In written submissions, the Crown focused upon the arraignment that had occurred months before the arrival of the jury panel, on 6 February 2017. It was said that, in truth, “the trial proceedings had commenced” on that date. It was said that the seeming spelling error committed in February 2017 did not invalidate that indictment, and could be cured in any event by s 16 of the CPA.

15. [207]

    It was said that the appellant had been “correctly arraigned on the February indictment”, and that the District Court had thereby been seized with jurisdiction from that point on to conduct his trial.

16. [208]

    In short, the Crown placed a great deal of weight on the asserted ameliorative fact that the appellant had been validly arraigned months before the commencement of the trial, albeit on an indictment that was physically a separate document, and textually different.

17. [209]

    As for what actually occurred on 23 October 2017, whereby pleas of not guilty were merely “entered”, it was accepted that it was “attended by procedural irregularity”. Having said that, various cases were referred to in support of the proposition that it was of little moment, and certainly would not lead one to characterise the subsequent trial as a nullity.

18. [210]

    The procedural history of R v Halmi was relied upon by the Crown in an effort to distinguish that case, on the basis that in that matter, although a number of indictments had been presented, the accused had in fact only been arraigned on the admittedly defective one.

19. [211]

    The written submissions of the Crown concluded with the proposition that here there was not the slightest prejudice to the accused; nor any question but that he was insisting that he was not guilty; nor any lack of clarity about the counts upon which he was to be put on trial. It was said that, having been arraigned months beforehand, there was no “statutory or other requirement for the appellant to be re-arraigned in the presence of the jury”. The proposition that the admitted procedural irregularity must lead to nullification was rejected.

20. [212]

    In oral submissions, the point was emphasised that there had been a valid arraignment of the appellant upon an indictment months before the procedural irregularity occurred. It was said that it was at that stage that the appellant had “put himself on the country for trial”, and that those “trial proceedings” were never “discontinued”.

21. [213]

    It was also said that the alteration in the spelling of the name of one of the prohibited drugs averred – whether one characterised that process as an amendment or a substitution for the purposes of s 20 of the CPA – was in truth unnecessary. After all, the name of the drug is merely a particular, and its misspelling would lead to “effectively no consequences”.

22. [214]

    The point was also made that, if in truth the process that took place before the jury panel was not a valid one, then it could hardly be said that one indictment had been substituted for the other, with the result that the indictment of February 2017 remained “operative”.

23. [215]

    It was said that the fact that the “physical document”, a copy of which was provided to the jury, was not quite the same as the document upon which the appellant had been arraigned in February 2017 constitutes a procedural irregularity, but does not nullify the trial.

24. [216]

    As for the point made for the appellant that his pleas should have come from his own mouth, it was said that, if that were a procedural irregularity, the previous arraignment would “fix it”. In truth, it was said, what occurred at the commencement of the trial was “really a re-arraignment and it was unnecessary, in terms of seizing the court with jurisdiction”.

25. [217]

    Finally, various decisions of various courts were pointed to for the proposition that various procedural irregularities in criminal trials, including with regard to arraignment, do not render a trial a nullity.

26. [218]

    The first step towards resolution of this ground is identification of the effectual arraignment, of which any procedural criticisms are able to be made. I say that because of the submission of the Crown that any asserted defect in the arraignment before the jury panel can be “cured” by consideration of the arraignment that occurred eight months before that time.

27. [219]

    It is certainly the case that, over the past 30 years or so, a system of “pre-trial arraignment” has developed by way of statute and practice note in the superior courts of New South Wales. That was done for at least three reasons: to ensure that the trial court has jurisdiction for the purpose of making binding case management orders; to ensure that pre-trial voir dires and other legal determinations are well-founded; and, as a matter of practicality, to ensure that matters committed for trial from the Local Court did not administratively “fade into obscurity”.

28. [220]

    It is also true that, for some purposes at least, pre-trial arraignments are to be equated with the arraignment of the accused in the presence of the jury panel: see generally R v Nicolaidis (1994) 33 NSWLR 364.

29. [221]

    Still and all, in my opinion the “true” arraignment whereby the accused puts himself or herself “on the country” (to use the archaic phrase that continues to appear in s 154 of the CPA), and thereby exercises his or her right to trial by jury, is the one that occurs in the presence of the jury panel. To give but one example, were it otherwise, an accused person who was arraigned months before the date on which the trial is proposed to commence could complain that he or she is not having his or her right to that mode of trial immediately respected. In similar vein, it would be absurd to suggest that an accused person who has pleaded not guilty at a pre-trial arraignment is thereby estopped from subsequently electing for trial by judge alone before he or she is arraigned at the true commencement of the trial.

30. [222]

    In short, I consider that the process of pre-trial arraignment that occurs in the District and Supreme Courts of New South Wales undoubtedly serves to seize those courts with jurisdiction. But those arraignments cannot be thought of as substitutes for the requirement that, at the commencement of a trial by jury, an accused person is to be arraigned in the presence of the jury panel upon the indictment upon which the jury will be asked to return its verdict.

31. [223]

    Quite apart from that, I believe that the analysis of this Court in R v Halmi, especially at [51] and [52], maintains the primacy of the indictment upon which an accused person is actually arraigned, with due formality, in the presence and hearing of the jury panel. After all, that is the indictment that is the centrepiece of the commencement of the proceedings before the judges of the facts; it is the indictment by reference to which the verdict is returned at the end of the trial; and it is the indictment that, once endorsed by a trial judge, itself becomes the record of arraignment, empanelment, verdict, conviction, and sentence.

32. [224]

    And in my opinion, the analysis in R v Halmi is not dependent upon the procedural attributes of the prior indictments upon which the Crown relied in that appeal, in the sense of whether there had been leave granted for substitution, whether the appellant had been arraigned upon one or more of them, and so forth. To the contrary, it is based upon the simple primacy of the indictment upon which an accused person is arraigned in the presence of the citizens who will become his or her judges as to the facts.

33. [225]

    It follows that, in my opinion, if there was a procedural failing in the arraignment in the presence of the jury panel, it cannot be cured for all purposes by a prior pre-trial arraignment, even if that earlier exercise was procedurally perfect. And that is quite apart from the undeniable facts that the earlier indictment was not the same document as the one upon which the trial proceeded, and indeed was textually not quite identical.

34. [226]

    It also follows that I respectfully reject much of what was said by the Crown in this Court in resistance to ground one.

35. [227]

    In short, the first step in my reasoning is that the focus of consideration with regard to this ground must be the second arraignment that occurred on the morning of 23 October 2017, that occurred in the presence of the jury panel, in response to which the appellant said nothing, and at which the trial judge simply entered pleas of not guilty, and provided an explanation for doing so to the jury panel.

36. [228]

    The second step towards resolution is to identify what was actually occurring procedurally when an indictment that was not the same as the one that was before Judge Culver was presented at that latter arraignment.

37. [229]

    It will be recalled from my conspectus above that, after the conclusion of the trial of the severed count, an indictment containing the four remaining counts was presented on 6 February 2017, which spoke wrongly of “Methorpan”. The appellant was arraigned in an orthodox and unexceptionable way on that indictment before Judge Culver.

38. [230]

    Subsequently, on 23 October 2017, a separate indictment (by that I mean, a different piece of paper) was presented that contained the same four counts, but spoke of “Methorphan”. As I have shown, that indictment was used to arraign the accused in the absence, and thereafter in the presence, of the jury panel on the date upon which the trial commenced.

39. [231]

    Section 20 of the CPA is as follows:

40. [232]

    It is noteworthy that that section did not exist in the CPA as originally made in 1986. It was inserted on 18 April 2001 by the Criminal Procedure Amendment (Pre-Trial Disclosure) Act 2001 (NSW), by which time the procedure of pre-trial arraignment had well and truly commenced, and was originally in the following form and location:

41. [233]

    In my opinion, what occurred here cannot be characterised as the amendment of an indictment. In my experience, that has always been understood as being a notation (often initialled by the Crown prosecutor or the trial judge or both) to the actual piece of paper, presented by a prosecutor, averring counts against a named accused person, that has been placed on the court file, whether the accused has been arraigned on it or not, and whether any such arraignment has occurred in the presence of a jury panel or not.

42. [234]

    In my opinion, what occurred here must be thought of as a substitution of one indictment for another (that is, substitution of the prior indictment first presented on 6 February 2017, with the indictment presented on 23 October 2017, and upon which the appellant was ultimately arraigned before the jury panel).

43. [235]

    On that analysis, it was incumbent on the Crown by statute to be granted leave before that process occurred. And it is true that, with respect, neither the Crown prosecutor nor the trial judge adverted to that necessity.

44. [236]

    But in my opinion, that slip cannot be relevant to the disposition of this appeal: all that was being corrected was a trivial spelling error; after all, if it had been detected after the trial had commenced, it inevitably would have been the subject of amendment of its particular, as opposed to a successful application for a verdict by direction. And it is inconceivable that the trial judge would not have granted the necessary leave, if asked to do so at any stage.

45. [237]

    In short, the second step in my reasoning is that what occurred here was a substitution of an earlier indictment with a subsequent one; there should have been an application for a grant of leave with regard to it; but that procedural slip takes the ground no further.

46. [238]

    The third step is to determine whether what occurred here was indeed at the least a procedural irregularity.

47. [239]

    As for that, senior counsel for the appellant is correct: since time immemorial, the practice in New South Wales and England and Wales has been that, at the commencement of a trial by jury on indictment, the plea of not guilty (or guilty) must come personally from the mouth of the accused. The following secondary sources support that proposition (I shall turn to the primary sources in the form of decisions of superior courts shortly).

48. [240]

    LexisNexis Butterworths, Criminal Practice & Procedure NSW, vol 1 (at service 126) [7.150] states that the accused is required to plead to the indictment personally. If the accused remains mute, the court may enter a plea of not guilty. Further, the accused is to be put on trial on the indictment upon which he or she was arraigned.

49. [241]

    Similarly, Watson, Blackmore and Hosking in Criminal Law New South Wales at [154.20] state that the defendant must plead personally, and that the plea cannot be made through his or her counsel. The authors note the exceptions if the accused is “deaf or dumb or insane or refusing to plead”.

50. [242]

    In Halsbury’s Laws of England, vol 27, at [373], it was recently said that “[t]he defendant must enter a plea himself; it is not sufficient for his counsel to do so on his behalf, or to indicate that the defendant wishes to plead guilty” (footnote omitted).

51. [243]

    It has also been recently said in Halsbury, vol 27, at [354] that “[i]f he stands mute of malice, or will not answer directly to the indictment, the court may order a plea of not guilty to be entered on his behalf, and he must then be treated as having pleaded not guilty.” (footnotes omitted).

52. [244]

    In Sir Stephen Mitchell QC, Archbold: Criminal Pleading, Evidence & Practice (67th ed, 2019, Sweet & Maxwell) at [4-167] it was said, “except in a few special cases (e.g. where the defendant is a deaf mute, or refuses to plead) the initial arraignment must be conducted between the clerk of the court and the defendant. The defendant must plead personally—the plea cannot be made through counsel or any other person on his behalf”.

53. [245]

    Leaving the present state of affairs in England and Wales and New South Wales, almost 140 years ago Sir James Stephen wrote with regard to the former jurisdiction:

54. [246]

    Later in the same work, when discussing pleas available to an accused person, the author spoke of the procedure whereby the accused was called upon himself or herself to enter the plea. In similar vein, Sir James Stephen went on to discuss the process of peine forte et dure or pressing, which (in my opinion) itself constitutes a demonstration of the extreme importance placed upon a plea being entered from the mouth of the accused in earlier times.

55. [247]

    Of course, by the time Sir James Stephen was writing in the late 19th century, an accused person in England could be represented by counsel with regard to trials on indictment of treason, felony and misdemeanour. And yet the emphasis on an oral plea from the accused personally remained.

56. [248]

    Finally, in William Blackstone, Commentaries on the Laws of England (2016, Oxford University Press) at chapters 25 and 26, the whole discussion of the process of arraignment proceeds on the assumption that it is the accused himself or herself who will enter the plea (having said that, at chapter 27, the author spoke of the “settled rule at common law” as it was then that, although the Crown could be represented by counsel at trial of any capital crime, the accused could not be, except to argue a point of law).

57. [249]

    In short, the third step in my reasoning is that what occurred here was prima facie a procedural irregularity, at the least. That is because secondary sources show that, over centuries, a trial on indictment in England and Wales and New South Wales has commenced by way of a plea of not guilty from the mouth of the accused, except in most unusual circumstances. As can be seen, one such circumstance is when the accused person insists on “standing mute”. Another circumstance is when the accused will not answer sensibly or with reasonable directness to the indictment. Indeed, I proceed on the inference that, since trial by jury was introduced in New South Wales in the 1830s, an oral answer to an arraignment has always been the orthodox commencement of trial by jury.

58. [250]

    The fourth step is to consider whether the procedure adopted here could be said to fall within the exception; by that I mean, could it be said that things had reached a point at which it could be predicted that the appellant would not answer to the indictment appropriately? After all, it was conceded by senior counsel before us that, over a period of well over five years, the appellant had markedly failed to engage constructively with the criminal justice system. And it is also noteworthy that, seemingly minutes before the arraignment in the presence of the jury panel, the trial judge and the appellant had been “talking over each other”.

59. [251]

    In my opinion, it is quite possible that the trial judge adopted this most unusual procedure of “entering pleas on behalf” of the appellant for fear that the accused would answer non-responsively in the presence of the jury panel, perhaps thereby derailing the trial by jury before it had even commenced.

60. [252]

    I respectfully think that that may well be the case. But to be weighed against that is the fact that, according to the transcript, the unrepresented appellant was given no chance at all to plead in the presence of the jury panel. And if he had answered non-responsively, it would not have been a difficult thing for the trial judge to instruct the jury panel to disregard his non-responsive words completely.

61. [253]

    In short, the fourth step is my opinion that, although the procedure adopted may have been for understandable abundant caution, I am respectfully of the view that it was not appropriate. It could not be said to fall within the exceptions to be found in s 155 of the CPA.

62. [254]

    It follows that the concession of the Crown before us that a procedural irregularity occurred by way of the appellant not being permitted to respond to the indictment personally in the presence of the jury panel is soundly based.

63. [255]

    The fifth step in my reasoning is to consider whether the procedure adopted deprived the District Court of jurisdiction, and thereby rendered the trial a nullity. Again, I consider that the approach to the question in other jurisdictions is illuminative; in other words, I respectfully reject the proposition of senior counsel for the appellant that nothing is to be gained from looking at judgments of other jurisdictions that have considered this question or similar questions. I discuss those judgments in broad chronological order.

64. [256]

    In R v Heyes [1950] 2 All ER 587, the accused was arraigned on counts of stealing and receiving, and entered pleas of not guilty. After the opening of prosecuting counsel, he indicated through recently appointed defence counsel that he wished to change his plea to guilty. Although no note was made of it, it was subsequently agreed that the plea had indeed come from his own mouth. The presiding Recorder wrongly believed that no verdict needed to be taken from the jury. Ultimately, the accused was convicted and sentenced.

65. [257]

    On appeal, the English Court of Criminal Appeal remarked at 588 that

66. [258]

    A little later it was said with regard to the failure of the jury to return a verdict at 588: “the trial was a nullity, and we could set aside the proceedings and order a re-trial or venire de novo.” In the event, the court exercised its discretion not to do so.

67. [259]

    This case is supportive of two propositions: first, that, once an accused person is in the charge of the jury, absent statutory modification such as s 157 of the CPA, the jury itself must return a verdict; and, secondly, that any plea on indictment, whether it be guilty or not guilty, must come from the mouth of the accused.

68. [260]

    In R v Boyle [1954] 2 QB 292 an indictment containing a number of counts had been read to the appellant “as a whole”. He pleaded guilty seemingly globally, and was convicted and sentenced to imprisonment. The appeal to the English Court of Criminal Appeal focused on whether in truth one of his convictions was sound, based as it was on “constructive breaking”. After finding that it was indeed sound, the Court went on disapprove the process of pleas being entered to indictments “globally”, or as a whole. The Court said at 296:

69. [261]

    This case is supportive of the proposition that the pleas to each count on a multi-count indictment must not only come from the mouth of the accused, but also must be an answer to each individual count.

70. [262]

    In R v Ellis (1973) 57 Cr App Rep 571, the appellant had been arraigned by the Clerk of the Court on a count of burglary. When asked whether he pleaded guilty or not guilty, his counsel intervened, and himself indicated that the plea was guilty, but accompanied by a dispute about quantum. What appears to have been proceedings on sentence with regard to the disputed facts concluded with the facts being found in the favour of the appellant. He was convicted and sentenced to imprisonment.

71. [263]

    On appeal it was submitted that the appellant “was never tried at all and that neither conviction nor sentence” could stand.

72. [264]

    After referring to Heyes, the English Court of Appeal in its Criminal Division referred to the unreported case of Tasamulug (29 April 1971), in which the same Court was untroubled by an alteration of plea from not guilty to guilty during the course of a trial, despite the fact that it did not come from the mouth of the accused himself. Having said that, in that decision it had been said that “[i]t is an almost universal and very salutary rule that a plea of Guilty should not be accepted except from the mouth of the accused…”.

73. [265]

    To the contrary of that statement, in R v Ellis it was said at 574:

74. [266]

    It was also said that the rule is a “salutary one”, not least because there can be no dispute as to whether or not a plea entered by counsel is the result of misunderstanding or crossed wire with his or her client.

75. [267]

    Later it was said that it “is an invariable requirement that the initial arraignment must be conducted between the Clerk of the Court and the accused person himself or herself directly”. It was also confirmed that, if the indictment contains more than one count, there must be a plea that responds to each of them individually.

76. [268]

    Reference was also made in R v Ellis to the unreported decision of Young and Young (8 June 1967), in which husband and wife were arraigned on joint charges of stealing, to which both pleaded not guilty. When the trial proper commenced at a later stage, the husband was provided with a copy of the indictment, and said “Guilty to all the stealing charges”. The wife was not arraigned again, and it was wrongly assumed that her husband had spoken for the both of them.

77. [269]

    Unsurprisingly, the English Court of Appeal held in Young and Young that:

78. [270]

    In the event, in the appeal of R v Ellis the conviction was set aside, and the matter stood over for further trial.

79. [271]

    This case is an example of judicial emphasis upon the plea coming from the mouth of the accused personally, even in the case of a plea of guilty, and even in a case in which there is no suggestion of a crossed wire.

80. [272]

    In R v Williams (Roy) (1977) 64 Cr App Rep 106; [1978] QB 373, the accused entered the dock and was (in effect) called for trial in a way familiar to criminal procedure in New South Wales. Before he could be arraigned, both counsel spoke of the trial needing to be adjourned. It was adjourned, and the Court record was endorsed to that effect, along with “Plea N.G.” In truth, no such plea had been formally taken.

81. [273]

    On the next occasion, the accused was again called for trial. The trial judge and both counsel then appearing had not been present on the previous occasion, and were unaware that the accused had not been previously arraigned.

82. [274]

    In light of the wrongful notation on the court file, he was never arraigned. The jury was empanelled, sworn, and the accused was placed in its charge. In a way familiar to us, that charge spoke of the accused having been arraigned, of him having pleaded not guilty to the count, and of the jury being called upon to determine his guilt or otherwise.

83. [275]

    The trial concluded with a verdict of guilty, conviction, and imprisonment.

84. [276]

    On appeal, the English Court of Appeal gave short shrift to an argument that the conviction should be quashed on the basis that the accused had never been arraigned, and therefore the proceedings were a nullity.

85. [277]

    The authorities that spoke of the rigours of the necessary formalities in the context of a plea of guilty – especially after an initial plea of not guilty – were distinguished. Indeed it was said that “no qualification of or deviation from the rule that a plea of guilty must come from him who acknowledges guilt is thus permissible”.

86. [278]

    In contrast, however, it was said that

87. [279]

    The Court went on to contrast the modern position with that spoken of by Stephen in 1883: at 379.

88. [280]

    In short, the Court concluded that there had probably been a “pre-trial irregularity”. Still and all, it was said that

89. [281]

    In the event, what had occurred was characterised as “unfortunate and regrettable, [but] it did not, in the peculiar circumstances of this case, have the result of vitiating the trial as such”, with the outcome that the appeal was dismissed.

90. [282]

    This English case is suggestive of a modern movement away from the formalistic emphasis on the need for a plea at the commencement of a trial on indictment to come from the mouth of the accused, so long as there is no suggestion of a miscarriage of justice having occurred.

91. [283]

    In R v Kepple [2007] EWCA Crim 1339, the accused was charged with unlawful wounding after an altercation at a hotel. He was arraigned pre-trial and pleaded not guilty. On the morning of the trial sometime later, Crown counsel informed defence counsel that he proposed to add a count of wounding with intent. The accused was present at court, and his counsel informed him that the prosecution would apply to amend the indictment. Shortly after that, the accused and his witnesses disappeared.

92. [284]

    An application by the prosecution for trial on indictment of the accused in his absence – alien to our way of thinking in New South Wales – was granted. His solicitor and counsel continued to represent him. The indictment was amended to include the more serious count. More than once during the trial, defence counsel sought unsuccessfully to have the jury discharged, on the basis that the accused had not been arraigned on the new count. In the event, the jury returned a verdict of guilty on that count, the accused was subsequently arrested, and he was sentenced to imprisonment (and for his breach of bail).

93. [285]

    The English Court of Appeal in its Criminal Division allowed the appeal and ordered a retrial, but on grounds unrelated to this aspect.

94. [286]

    After reviewing some of the authorities to which I have referred, the Court held that “the Appellant waived his right to an arraignment under the count in respect of the offence under s 18, [that is, the count upon which he had never been arraigned at any stage], just as he had waived his rights in respect of his attendance at the trial.”

95. [287]

    Again, I think that this English decision must be understood as an example of the movement away from formalism, admittedly in the context of a procedure for trial by jury in the absence of the accused that is almost completely alien to us.

96. [288]

    In Caruso v R [2012] VSCA 138, the appellant was convicted of the murder of his wife in the Supreme Court of Victoria. He had been arraigned before a jury panel, and pleaded not guilty to one count of murder. After the trial judge excused a number of potential jurors, an insufficient number of them remained for a jury of 12 to be confidently empanelled. The panel was supplemented by way of further potential jurors being brought into the courtroom. The appellant was never arraigned before that latter group of potential jurors. Nor were those further potential jurors provided with the various particulars of the indictment, such as the name of the alleged deceased, the date of the alleged offence, and so forth.

97. [289]

    The Victorian Court of Appeal was untroubled by what had occurred, noting that the accused had suffered no unfairness from the fact that some members of the jury panel were not present when he had pleaded not guilty, and that no request had been made that he be re-arraigned in the presence of the further potential jurors. The Court said that “we did not think that there was any benefit to be derived by the accused uttering two words before the jury panel.”

98. [290]

    Separately, the decision of the English Court of Appeal in R v Williams (Roy) was noted, and emphasis given to the passage in which it had been said:

99. [291]

    Again, this decision is an example in our own country of a movement away from formalism.

100. [292]

     Turning now to decisions of this Court, in Kamm v R [2007] NSWCCA 201, the appellant had been arraigned at the commencement of a trial by jury on a sexual offence that did not in fact exist at the time of its alleged commission. Once that was discovered, over objection of his then-counsel he was re-arraigned on a count pleaded in accordance with the correct offence-creating provision, and personally pleaded not guilty in the presence of the trial jury. He was not, however, formally put in charge of the jury with regard to that new count.

101. [293]

     On appeal, senior counsel for the appellant accepted that the defective count was amenable to amendment pursuant to ss 20 to 22 of the CPA (I interpolate that, with the utmost respect, I am not convinced that the concept of amendment of a count on an indictment in a trial that is already underway is so broad as to permit substitution for it by a different offence brought pursuant to a different offence-creating provision, but nothing turns on my uncertainty). It was also conceded that, in truth, re-arraignment on the “amended” count was not really necessary. The nub of the appeal was the return of a verdict of guilty on that count, despite the fact that the appellant had not been put in the charge of the jury with regard to it.

102. [294]

     This Court (Hodgson JA, with the agreement of Simpson J as her Honour was then, and Grove J) was untroubled by the absence of that formality with regard to the “amended” count. Hodgson JA said that “[e]ven if there had been a procedural irregularity in this case, it would in my opinion have been immaterial. However, for the reasons I have given, I do not consider there was any irregularity.” (Citation omitted.)

103. [295]

     In my opinion, this case must be understood generally as another example of the modern movement, this time within our own jurisdiction, away from formalism with regard to indictments and arraignments and counts being put in the charge of the jury.

104. [296]

     In R v Halmi, as I have said, a trial that was conducted upon an indictment that had been signed by counsel not authorised to do so was held to be a nullity. But as I have also said, I do not regard that decision as an expression of formalism; quite the contrary.

105. [297]

     In similar vein, in R v Janceski, it was discovered that an indictment had been signed by a person who was not, in truth, authorised by statute to do so. Although the trial betrayed no other failing, the conviction was quashed and a new trial ordered. A five judge bench of this Court engaged in an extensive consideration of the question of statutory construction, pursuant to the seminal decision in Project Blue Sky In v Australian Broadcasting Authority 194 CLR 355; [1998] HCA 28 of whether Parliament had intended that failure to comply with the strictures of the statute would result in invalidity, and determined that it had indeed so intended.

106. [298]

     Finally, turning to decisions of single judges, in Fell v Chenhall [2018] NSWSC 1574, I recently discussed the question of whether a failing in the initiation of criminal proceedings (in that context, with regard to a wholly summary offence prosecuted in the Local Court) rendered the proceedings a nullity, with the result that any subsequently commenced proceedings would be captured by the well-known statute of limitations pertaining to wholly summary offences.

107. [299]

     I emphasised the movement away from excessive formalism effected here and in England and Wales by a series of statutory amendments in the 19th and 20th centuries. I concluded that the failing in that case – commencing proceedings in the “wrong” Registry of the Local Court without the necessary leave – did not lead to invalidation. A stay of the substantive proceedings in order to permit an interlocutory appeal against my decision was refused: Fell v Chenhall [2018] NSWCA 260.

108. [300]

     I draw from the preceding conspectus of judgments of England and Wales, Victoria, and New South Wales the following. There certainly was a procedural irregularity here. But I do not believe that it denied the District Court jurisdiction to hear the matter. Nor do I believe that it constituted a miscarriage of justice. I say that for the following reasons.

109. [301]

     First, even in its strictest form, the orthodox procedure admits of pleas of not guilty being entered without that plea coming from the mouth of the accused; for example, when the accused wilfully stands mute.

110. [302]

     In similar vein, if an accused refuses to plead to a count entirely “correctly” – for example, perhaps by pleading “I am innocent” – it is impossible to accept that the rigidity of the formalities of arraignment mean that the subsequent trial must be a nullity. Senior counsel for the appellant did not suggest otherwise.

111. [303]

     Both of those aspects show that, even at its highest, the requirement of an oral plea of “not guilty” to commence validly a trial by jury is not absolute.

112. [304]

     Thirdly, the movement over the past few centuries has been away from procedural formalism in criminal law, and towards a focus on matters of substance.

113. [305]

     Fourthly, that is not just the result of statutory reform (of which examples such as s 16 remain collected in our CPA as at today). It can also be discerned from the movement in the tide of judicial approach over the years in the cases that I have summarised above: away from ritualism and towards questions of substance and justice.

114. [306]

     Fifthly, here there can be no question of the pleas of not guilty being the result of a crossed wire between the appellant and the trial judge. To the contrary: over the preceding 5 ½ years, the appellant had made it clear to countless judges that he was insisting that he was not guilty.

115. [307]

     Sixthly and finally, the analysis in R v Halmi and R v Janceski was very much a question of whether the failing identified there was, as a matter of statutory interpretation, to be understood as so grave as to lead to invalidation. But, in my opinion, that failing is readily to be distinguished from this: in those cases, the simple fact is that a person had exercised the legally and socially significant powers of a Crown prosecutor who was not, in truth, entitled to do so.

116. [308]

     In other words, in my respectful opinion, the decisions in R v Janceski and R v Halmi are not examples of emphasis on empty formality by the criminal justice system; rather, they are a vindication of important choices that had been made by Parliament about empowerment of some persons as opposed to others within that system.

117. [309]

     In short, in my opinion what occurred here was contrary to long established practice, and was a procedural irregularity. But it did not deprive the District Court of jurisdiction to conduct the trial that followed it. Nor can it be characterised as a miscarriage of justice, in light of the fact that it was clear that the appellant would never admit his guilt of these counts, and in light of the fact that the procedure adopted occasioned no prejudice to the appellant.

118. [310]

     It follows that I would not uphold ground one.

Ground 2:

1. [311]

   In written submissions, senior counsel for the appellant conceded that the appellant came to be self-represented as a result of his own choices. However, it was emphasised that this Court should not focus on such choices - in the sense of ascribing blame - in determining whether there was a miscarriage of justice.

2. [312]

   Senior counsel referred to various cases that emphasise the imperatively “heavier burden” upon trial judges to ensure the fairness of the proceedings when the accused is not legally represented: for example, MacPherson v R (1981) 147 CLR 512 at 546. Senior counsel submitted that the relevant question is whether, on the whole, there was a miscarriage of justice, not whether the accused is to blame for it: see Frawley (1993) 69 A Crim R 208 at 212.

3. [313]

   Turning to specific aspects of the trial, senior counsel for the appellant delineated four distinct matters that either individually, or collectively, gave rise to a miscarriage of justice.

4. [314]

   The first matter senior counsel relied on was the failure to call Mr Ozone to give evidence in the trial. The appellant had told the trial judge that Mr Ozone had “everything” to do with the drugs – however, to repeat, his Honour ruled that Mr Ozone should not be called:

5. [315]

   Senior counsel submitted that the allegations against the police witnesses that the appellant sought to make would have required substantial skill and tact (even for experienced defence counsel). Absent legal representation, the appellant was not in a position to do so, which was exacerbated by the refusal of the trial judge to have Mr Ozone called.

6. [316]

   As a result, therefore, the appellant repeatedly told the trial judge (even in the presence of the jury) that without the assistance of a lawyer, he felt he could not effectively cross-examine any witnesses. As a result, the trial judge himself put the allegations of corruption to the police witnesses.

7. [317]

   As exemplified above, the police witnesses simply denied the allegations. In addition, the trial judge directed the jury not to speculate about matters upon which there was no evidence before them.

8. [318]

   It was submitted that, in these circumstances and absent cross-examination of the person alleged by the appellant to be responsible for the drugs, the appellant could not, in a practical manner, establish a reasonable doubt with regard to the Crown case.

9. [319]

   It was contended that, instead, the trial judge should have ensured the attendance of Mr Ozone at the trial so that the hypothesis that Mr Ozone was responsible for the drugs could be properly put before the jury.

10. [320]

    Senior counsel for the appellant contingently argued that what should have happened was this: as soon as it became clear that a fair trial could not be conducted, the trial judge should have discharged the jury and set a new trial date. That would have allowed the appellant to obtain legal representation, or at least the opportunity to subpoena Mr Ozone.

11. [321]

    In oral submissions, senior counsel responded to a Crown submission that it would be difficult to determine that the absence of Mr Ozone played a role in a miscarriage of justice when it is not clear what evidence Mr Ozone would have given.

12. [322]

    Senior counsel for the appellant contended that the appellant made “abundantly clear” during the trial that Mr Ozone was “responsible” for the drugs in the ceiling cavity.

13. [323]

    Senior counsel further submitted that Mr Ozone was not simply “plucked out of thin air” by the appellant – Mr Ozone was initially charged with regard to the January supply, but seemingly later became a registered source. Senior counsel conceded that it was not clear whether Mr Ozone was actually called as a prosecution witness in the trial for the January supply. Nonetheless, it was submitted that, as a registered source, Mr Ozone might reasonably be considered to be criminally involved in some way.

14. [324]

    Secondly, in response to the Crown submission that the appellant did not place any evidence before this Court concerning the evidence that Mr Ozone could have potentially given, senior counsel submitted it was not worthwhile to obtain an affidavit from Mr Ozone, due to the realistic expectation that Mr Ozone would not co-operate with the legal team of the appellant.

15. [325]

    Thirdly, senior counsel submitted that the appellant had wanted Mr Ozone to be called in the prosecution case, and that the submission concerning Mr Ozone boiled down to the failure of the Crown prosecutor, or the trial judge, or both, to call Mr Ozone – such failure constituting a miscarriage of justice.

16. [326]

    Senior counsel reiterated that Mr Ozone’s status as a registered source in the January supply trial meant inevitably that he would have been called, but for the severance of the counts relating to the April supply.

17. [327]

    It was submitted that, if the appellant had been legally represented, defence counsel would have readily made an application to have Mr Ozone called in the prosecution case, and it would in all likelihood have been facilitated.

18. [328]

    Senior counsel contended that it is instructive that the trial judge was at first not satisfied with the Crown prosecutor refusing to call Mr Ozone, and that the trial judge invited the appellant to provide a list of people to be subpoenaed – that was said to show that the trial judge had formed a view that there was some substance in what the appellant was seeking.

19. [329]

    Fourthly, senior counsel conceded that the appellant’s references to Mr Ozone were “many and oblique”, and that this Court should “infer” from the context of the references that their “net effect” was that Mr Ozone was responsible for the drugs in the ceiling cavity.

20. [330]

    In oral submissions in reply, senior counsel responded to the Crown’s oral submission that calling Mr Ozone would have been a “forensic disaster”. Senior counsel posited that such “forensic disaster” was within the prerogative of the appellant to create, and that in any event there was substance in the appellant’s insistence that Mr Ozone be called.

21. [331]

    In written submissions, the second matter raised by senior counsel was the ruling by the trial judge that the taking of the 2009 fingerprints be admitted into evidence.

22. [332]

    The decision of the trial judge to admit the 2009 fingerprints was a result of his Honour’s rejection of evidence of the 2012 fingerprints. Senior counsel for the appellant recounted that the trial judge considered that the Crown must be put to strict proof against an unrepresented accused. Senior counsel accepted that that was not unusual, but noted that his Honour did not require such stringency for proof of the “weights” and “quantities” of the drugs (tcpt, 1 November 2017, 319(48)).

23. [333]

    Senior counsel conceded that the trial judge was minded to ensure fairness to the appellant, and on that basis, did not allow evidence of any fingerprints to be admitted if the police officer who took them was not available to be cross-examined. The police officer who took the 2009 fingerprints was available to give evidence. Nevertheless, it was submitted that the ruling by the trial judge required the Crown to rely on the 2009 fingerprints resulted in a miscarriage of justice.

24. [334]

    Senior counsel provided three reasons for that: first, the 2009 fingerprints tended to prove “bad character” by suggesting that the appellant had, in the past, been of interest to the police; secondly, significant attention was given to the issue of the fingerprints, (the evidence took up one day of a relatively short trial); and lastly, the direction given by the trial judge to the jury that they should not speculate about the origin of the 2009 fingerprints only served to highlight the issue, and to reinforce the inevitable prejudice against the appellant.

25. [335]

    In oral submissions, senior counsel did not go beyond a summary of the points made in the written submissions.

26. [336]

    In written submissions, senior counsel for the appellant contended that the Crown prosecutor made a number of remarks that exceeded the boundaries of appropriate conduct for prosecutors.

27. [337]

    Senior counsel explained that the direction given by the trial judge to the Crown prosecutor that he should deliver a final address was not being impugned – rather, it was the Crown prosecutor’s comments to the effect that the defence case was so lacking that it was “going off with the fairies”, indulging in “diabolical conspiracy” theories, and would involve accepting a “Mossad-style” operation that was the subject of complaint.

28. [338]

    Senior counsel contended that, whilst the Crown prosecutor had the right to present the Crown case firmly, the Crown prosecutor instead transgressed the second, fifth, and eighth principles outlined by this Court in Hughes v R (2015) 93 NSWLR 474:

29. [339]

    In oral submissions, senior counsel said that, as there was in truth no evidence adduced by the appellant relating to “conspiracies”, it was not appropriate for the Crown prosecutor to refer to the appellant’s theories of “conspiracies” in his final address.

30. [340]

    More generally, senior counsel impugned the content of the final address of the Crown prosecutor insofar as it was belittling and included statements bordering on insults.

31. [341]

    It was also contended that in accordance with Libke v R (2007) 230 CLR 559; [2007] HCA 30 it was inappropriate for the Crown prosecutor to express his “personal opinions”, such as that the appellant was “off with the fairies” and that he was alleging “Mossad style setups”.

32. [342]

    With regard to this factor, senior counsel accepted that the trial judge faced a difficult task in dealing with an unrepresented accused who repeatedly asserted that he could not have a fair trial, and who repeatedly sought an adjournment of the trial in the face of an adverse ruling.

33. [343]

    However, senior counsel contended that the appellant should not have been held to the same standards as counsel, and that the trial judge should not have rebuked the appellant, at least not in the presence of the jury.

34. [344]

    Senior counsel relied upon the following remarks of the trial judge throughout the trial:

35. [345]

    Senior counsel contended that these remarks would have raised in the minds of the jury suspicion of a “nefarious intent” on the part of the appellant, or that something negative about the appellant was being hidden from the jury.

36. [346]

    Senior counsel argued that, as a matter of fairness, the trial judge should have firmly warned the appellant in the absence of the jury. It was said that the effect of these rebukes in their presence belittled the appellant, made him appear untrustworthy, and rendered the defence case of the appellant ineffective.

37. [347]

    In relation to the directions of the trial judge, senior counsel stated that the trial judge did not clearly delineate the boundaries of what the appellant could and could not say in his closing address (the relevant extract is at [182] of this judgment) – with the predictable result that the appellant overstepped the permissible boundaries, attracting disapprobation from the trial judge in the subsequent directions to the jury.

38. [348]

    Senior counsel then submitted that on at least four separate occasions, the trial judge directed the jury to disregard matters the appellant raised from the Bar table.

39. [349]

    In particular, senior counsel referred to the directions before the appellant gave his closing address and immediately after, as extracted above at [183], [186] and [188].

40. [350]

    Since the police witnesses were questioned (albeit by the trial judge) as to whether they had been complicit with Mr Ozone in putting the drugs in the roof, senior counsel contended that the appellant could have dealt with this issue in his closing address. It was further submitted that the appellant had the right to have the jury consider this hypothesis, but that the directions of the trial judge denied him that right.

41. [351]

    In oral submissions, senior counsel acknowledged that no mala fides on the part of the trial judge was being alleged in this Court. It was conceded that the trial judge was entitled to interrupt the appellant when he repeatedly raised matters not in evidence, but the manner and form of the words used by the trial judge were impugned.

42. [352]

    In written submissions, by way of introduction, the Crown submitted that in order for the appellant to succeed on this ground, the Court needed to be satisfied that there was some “material irregularity” that affected the outcome of the trial.

43. [353]

    The Crown contended that the case against the appellant at trial was “extremely strong, if not overwhelming”. However, even by the time of the appeal, the appellant had not proffered any evidence that would have supported the putative defence case at trial.

44. [354]

    In relation to the particular matters relied upon by the appellant, the Crown responded as follows.

45. [355]

    It was said that at no point in the trial was the appellant able or willing to tell the trial judge what evidence could actually have been adduced by calling Mr Ozone, or what questions the appellant wished to ask Mr Ozone. The Crown submitted that the assertions by the appellant concerning Mr Ozone were general allegations that Mr Ozone was “framing” the appellant.

46. [356]

    The Crown then drew attention to the fact that the trial judge asked the appellant to provide a list of people to be subpoenaed, and in response the appellant requested that Mr Ozone be called. The trial judge refused, on the orthodox basis that Mr Ozone did not have “any legitimate relevance to the case”.

47. [357]

    The Crown emphasised that even by the time of this appeal, by which time the appellant was content to be represented by senior counsel, the appellant still had not put forward any evidence as to what the testimony of this allegedly crucial witness would have been.

48. [358]

    It was also said that the earlier conviction of the appellant was based upon the evidence of Mr Ozone, and therefore the failure to have him give evidence before the jury may have been forensically advantageous to the appellant.

49. [359]

    In oral submissions, it was said that, in truth, during the trial the appellant had never clearly stated the legitimate forensic purpose upon which he relied for having Mr Ozone give evidence. In particular, he never bluntly asserted that it was Mr Ozone who was responsible for the prohibited drugs that were found in the roof cavity of the home of the appellant.

50. [360]

    Furthermore, in the absence of any evidence from any source even at the time of the appeal, many months after the trial, it would not be possible for this Court to conclude that the refusal of the trial judge to issue a subpoena for his attendance plays any role in the establishment of a miscarriage of justice.

51. [361]

    And if, as one might infer, the true intention of the appellant at trial was to “re-litigate” the question of his guilt of the January supply, in the proof of which Mr Ozone had indeed played a part, that would have been nothing more than a “forensic disaster” for the appellant.

52. [362]

    Finally, even accepting that the alternative course of bringing Mr Ozone to court and at least hearing what he might have had to say on the voir dire could have been open to the trial judge, it was submitted that the failure to adopt that course could not be said to constitute a miscarriage of justice.

53. [363]

    The Crown submitted that the evidence of the 2009 fingerprints was not evidence of bad character, because there was no evidence of a prior arrest. Further, whilst the voir dire on the fingerprint evidence did take up considerable time, the evidence before the jury did not take up a disproportionate amount of time, especially considering its critical role in the Crown case.

54. [364]

    Further, the jury was appropriately directed not to speculate as to the origins of the 2009 fingerprints, and it must be assumed that juries follow the directions of the trial judge about such matters (reference was made to Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13]; and Dupas v The Queen (2010) 241 CLR 237 at [27]-[29]).

55. [365]

    In oral submissions, it was said that the evidence of the previous taking of the fingerprints was not that the appellant had been arrested or placed in custody, but simply that his fingerprints had been taken by the police, for whatever reason.

56. [366]

    Having said that, the Crown prosecutor did not wish to be heard against the proposition, with regard to the mode of proof ultimately adopted, that “the cure was worse than the asserted disease”.

57. [367]

    It was said, however, that the direction given by his Honour about the whole topic was sufficient, and that one is entitled to infer that, except in unusual circumstances, juries follow the directions of trial judges to the effect that they should not impermissibly reason in a prejudicial way.

58. [368]

    The Crown conceded that expressions such as “Mossad-style” and “going off with the fairies” were “unnecessary”.

59. [369]

    The Crown noted that the appellant had alleged in his final address that Mr Ozone, and Detectives Vanderhelm and Ferfiris were “behind all of this” and that the Crown was withholding phone records. In these circumstances, it was appropriate for the Crown prosecutor to invite the jury to reject the proposition of a “conspiracy” between Mr Ozone, the police officers, and potentially the Crown prosecutor himself.

60. [370]

    Further, in light of the lack of evidence of a “conspiracy”, the jury would have found the defence case inherently difficult to accept, rather than being affected by any inappropriate descriptors used by the Crown prosecutor.

61. [371]

    In oral submissions, it was accepted again that the closing address of the Crown prosecutor included “some unnecessary flourish”. It was also accepted that the reference by the Crown prosecutor to some of what the appellant had said as having been “off with the fairies” had a flavour of denigration of an unrepresented accused person.

62. [372]

    To be weighed against that, it was submitted, was that the trial judge had appropriately directed the jury to consider the submission of the appellant that there had been a conspiracy against him, and that he had been framed. In fact, it was said, that direction in the summing-up was a generous one, in that, in truth, there was no evidence whatsoever – including from the appellant –upon which those submissions could or should have been based.

63. [373]

    The Crown submitted that, all things considered, the trial judge had conducted the trial in a fair manner, and took appropriate control of the proceedings so as to ensure fairness to the appellant.

64. [374]

    The Crown referred to many examples: the explanation by the trial judge about how the Crown case would proceed; the advice his Honour gave to the appellant about the giving or calling of evidence and about cross-examination (including detailed assistance about the cross-examination of the appellant’s wife); the advice to give consideration as to whether he wanted to give evidence himself; the exclusion of the search warrant document; the ruling that the appellant’s wife should be called, as she could potentially give exculpatory evidence; at the appellant’s request, the adducing of this exculpatory evidence by the trial judge; and the assistance afforded by the trial judge to obtain a customs document from Western Australia showing that the appellant had brought a large sum of foreign currency into the country.

65. [375]

    The Crown further contended that whilst there were a number of “stern exchanges” between the trial judge and the appellant, the trial judge was nonetheless correct to say that he would not revisit matters that had already been ruled upon, and that the appellant had had earlier opportunities to prepare his case.

66. [376]

    It was argued that the warning by the trial judge before the appellant delivered his final address was not a “trap” (as described by senior counsel for the appellant).

67. [377]

    It was said that the appellant demonstrated an understanding of the proceedings and the allegations against him, as evidenced by the coherence of the applications he made and of his final address. It was submitted that the appellant had been quite capable of understanding the difference between evidence and submissions.

68. [378]

    It was submitted that the direction to the jury to disregard any submissions of the appellant that had no evidentiary foundation was unimpeachable.

69. [379]

    The Crown also submitted that the summing-up gave examples of matters that were based in evidence, and others that were not. For example, his Honour told the jury that they should not “sweep aside” the assertion by the appellant that the police officers had lied. The Crown submitted that this was very fair to the appellant, as in truth there was no evidence in the case to found a conspiracy theory.

70. [380]

    In oral submissions, with regard to the criticisms made by the trial judge of the appellant purporting to give evidence in his final address from the Bar table, it was submitted that they were entirely orthodox.

71. [381]

    The concluding point made about this ground in oral submissions was that one can readily infer from the whole of the transcript of this matter that the appellant is an intelligent person, and was sufficiently capable of conducting this litigation on his own behalf.

72. [382]

    Turning to my determination of this ground, the following preliminary points can be made.

73. [383]

    First, senior counsel for the appellant neither placed evidence before this Court to the effect that, nor otherwise suggested that, the appellant may have been unfit to stand trial at the time it took place. Such evidence, in my opinion, may have put a very different complexion on this matter. I infer from that course that the approach of the appellant to his trial, and his conduct during it, was the result of wilfulness, recalcitrance, and other characteristics of his personality rather than intellectual disability, or any psychological or psychiatric condition, or any other personal disadvantage beyond his control.

74. [384]

    Secondly, it is important that no evidence was placed before this Court as to precisely what Mr Ozone might have been expected to say if he had been called as a witness at the trial. To expand on that: there was neither a proof of evidence from Mr Ozone himself, nor an affidavit from the appellant as to what he would expect Mr Ozone to say, nor evidence from any other source shedding light on the question. It remains a matter of this Court divining from the whole of the transcript what the appellant believed Mr Ozone would say in his favour, just as it was for the trial judge.

75. [385]

    Thirdly, in that regard, respectfully contrary to the submission of senior counsel, I do not believe that the appellant was trying to say that, if compelled to give evidence, Mr Ozone would directly or indirectly take responsibility for the prohibited drugs located in the roof cavity. Rather, reading the transcript as a whole, I believe that the appellant was seeking to say that Mr Ozone played a role in the process whereby the police – allegedly wrongfully – obtained the search warrant that was executed at his home. I say that not only because, as my extensive extracts have shown, the appellant never directly claimed that Mr Ozone had placed the drugs in his home. I say it also because I believe that the import of his statements was that Mr Ozone had dishonestly or unfairly or illegally inculpated him, and it was that that led to the issuance and execution of the search warrant.

76. [386]

    Fourthly, the inability of the appellant to formulate the basis upon which he wished to have Mr Ozone present – for example, perhaps to establish on the voir dire that, pursuant to s 138 of the Evidence Act 1995 (NSW), the fruits of the execution of the search warrant should be excluded as unlawfully or improperly obtained – was an inevitable consequence of his unwillingness or inability to work with the many sets of lawyers with whom he had been provided over many years.

77. [387]

    Fifthly, to the extent that the appellant seemed to have been trying to “go behind” a search warrant on the basis that it had been issued on the basis of evidence that was false or wrong, he was not, as a matter of law, able to mount that argument: see, for a recent analysis of the question by this Court, Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109, in which cases were referred to that confirm the principle with regard to warrants issued pursuant to both Commonwealth and State legislation with regard to both Commonwealth and State offences: see, for example, Murphy v The Queen (1989) 167 CLR 94; [1989] HCA 28. And in a large sense, the application of that legal principle to my evaluation of the transcript that that was indeed what the appellant was seeking to do through Mr Ozone destroys much, if not all, of the force of the argument in this Court based on his absence from the trial.

78. [388]

    Sixthly, the Crown prosecutor made it clear that he would not call Mr Ozone because, in his opinion, he was completely irrelevant to the trial. In my opinion, nothing has been placed before us to impugn that decision.

79. [389]

    Separately, it is true that, in extraordinary circumstances, the trial judge can call a witness: see R v Apostilides [1984] HCA 38; (1984) 154 CLR 563. But it was not suggested to us that that should have happened here.

80. [390]

    The objective reality is therefore that, if the trial judge had issued a subpoena for the attendance of Mr Ozone, and if he had been able to be located and brought to court, he would have needed to have been called by the appellant. At the start of that process, at the least, the appellant as calling party would have been required to ask Mr Ozone non-leading questions. And as I have said, even now there is no direct or indirect evidence as to what Mr Ozone would actually have said; at the least, one might expect him to deny wrongdoing on his own part. It is not easy, in short, to see how the failure of that process to take place constitutes a miscarriage of justice, not least because it is not easy to infer that the calling of the witness in that way would have benefitted the appellant.

81. [391]

    Seventhly, as part of the orthodox process of explaining to an unrepresented accused the various choices that he or she may make throughout a criminal trial, the trial judge made the appellant aware that he could, if he wished, give evidence on oath or affirmation. He chose not to do so. Almost inevitably, that meant that the final address of the appellant was deprecated by the trial judge as containing much that the jury should disregard, on the basis that it was simply not founded in the evidence. That deprecation was unexceptionable.

82. [392]

    To be weighed against all of the foregoing factors that, in my opinion, argue against the success of the ground, it may be accepted that the trial had some very unsatisfactory features; the experienced Crown prosecutor who appeared before this Court did not seek to persuade us to the contrary.

83. [393]

    For example, as she accepted, the “cure” with regard to the question of the fingerprints was surely worse than the “disease” that troubled the trial judge. By that I mean, the concern of his Honour about the provenance of the fingerprints found on the crucial items being strictly proven should surely have been seen, with respect, to have been outweighed by the danger of the jury using prejudicially the fact that the fingerprints of the appellant had been taken by the police years beforehand.

84. [394]

    For another example, some of the comments made by the trial judge in the presence of the jury would inevitably have led the jury to have an adverse view of the appellant.

85. [395]

    For another example, although the appellant seemingly agreed more than once to the procedure whereby the trial judge asked open-ended questions of the prosecution witnesses, thereby in a sense setting out the case for the appellant, even so their inevitable denials of any serious wrongdoing rendered the exercise very largely futile, and indeed disadvantageous to the appellant.

86. [396]

    For yet another example, although some of the submissions made by the Crown prosecutor in his final address to the jury were apposite in light of the state of the evidence, some of them went beyond the bounds of the role of a minister of justice, in that they belittled what there was of the case for the appellant, and should not have been made.

87. [397]

    Seeking to make an evaluative judgment of all of those factors has a miscarriage of justice been established to have occurred here? The question is finely balanced, I confess. But after reflection, I consider that the responsibility for the undoubtedly defective features of this trial must be laid, very largely, at the feet of the appellant, as follows.

88. [398]

    To repeat: the trial was being conducted 5 ½ years after the events upon which it was based. That literally scandalous state of affairs was the result of the approach of the appellant, not the criminal justice system as a whole, nor the trial judge nor the Crown prosecutor in particular.

89. [399]

    The fact that the appellant was unrepresented was also, one can infer, the result of his approach to the litigation. Many if not all of the failings in the trial were a function of the simple fact that he was unrepresented. That is not a matter of ‘blaming” the appellant for the fact that he appeared for himself at the trial; it is simply a matter of ascribing, to a large degree, causation for how things developed at that trial.

90. [400]

    A third aspect of the trial that can be said to have been caused by the approach of the appellant is the fact that he was repeatedly criticised by the trial judge because he insisted on revisiting submissions that had been rejected, and often did so in the presence of the jury. Furthermore, some of his contentions were preposterous: for example, the proposition that the charges would be simply dropped, or that the trial should be adjourned so that he could seek legal representation, in light of the demonstrated futility of that course.

91. [401]

    In short, in assessing in this Court whether a defective trial was so defective as to constitute a miscarriage of justice, I consider that the fact that the cause of many of its defects was the conduct of the appellant is not irrelevant.

92. [402]

    Separately, despite my concerns about the adduction in evidence of the fact that the fingerprints of the appellant had been taken years beforehand, I think that the general proposition that juries are expected to follow directions against prejudicial lines of reasoning has application here.

93. [403]

    More generally, it is easy perhaps to criticise a trial judge who is attempting to deal with the challenges presented by the conduct and approach of an accused person as here, in the context of the wholly unacceptable delays that he had already created before the trial commenced. But due allowance needs to be made, I think, for the practical forensic problems with which the trial judge was confronted; with the benefit of hindsight, a judge sitting in this Court can easily identify ways that he or she might have been able to deal with things better. And in assessing whether this trial as a whole constitutes a miscarriage of justice, I think that due allowance must be made, not as it were for judicial exasperation, but rather for the simple challenge of finding a way to bring the criminal proceedings against the appellant to a conclusion by way of verdicts, in light of his entrenched approach to them.

94. [404]

    Reflecting on the combined effect of all of the matters relied upon by senior counsel for the appellant – none of which lacks some validity – I cannot accept that this trial constitutes a miscarriage of justice, with the inevitable consequence that this Court would order a new trial. I believe that its failings were very largely of the appellant’s own making. And, as I have said, in light of the absence of any evidence that any factor rendered him unfit to stand trial, I cannot accept the proposition that the whole of the proceedings are now to be set at naught, more than seven years after the prohibited items bearing the fingerprints of the appellant were found in the roof cavity of his home.

95. [405]

    In short, I would not uphold ground two.

96. [406]

    Finally, I indicate contingently that, if I be wrong in refusing to characterise these proceedings as a miscarriage of justice, I would not dismiss ground 2 on the basis of the “proviso” to be found in s 6 of the Criminal Appeal Act 1912 (NSW). That is because, despite the seeming simplicity and strength of the Crown case that the appellant did indeed possess the prohibited drugs for supply, it is the failings in the process of the trial that found the ground of appeal that themselves make assessment of whether a substantial miscarriage of justice has actually occurred impossible in the circumstances of this case.

Proposed orders

1. [407]

   Because I would not uphold either ground of appeal against conviction, I propose the following orders:

   1. (1)

      Leave to appeal to argue ground 2 granted.

   2. (2)

      Appeal dismissed.

2. [408]

   LONERGAN J:

3. [409]

   I have had the advantage of reading the draft judgments of Basten JA and Button J. The factual and procedural background, circumstances of the arraignment and relevant exchanges between the then unrepresented applicant and the Bench have been set out at relevant length in those judgments and there is no need for me to repeat them.

4. [410]

   I agree with both Basten JA and Button J that ground 1 of the appeal – that the applicant was not properly arraigned and thus the trial was a nullity - should be rejected. I specifically agree with and adopt Basten JA’s conclusions in [40] and [41] on that issue.

5. [411]

   In respect of ground 2, the miscarriage of justice ground, I have carefully and independently considered the transcript of the hearing and the five particular complaints made by the applicant. I have considered each complaint and its effect separately as well as together to assess their cumulative effect on the question of whether there was a miscarriage of justice arising from events occurring in the course of the trial.

6. [412]

   I have reached the independent view that there was no miscarriage of justice.

7. [413]

   I adopt and agree with Basten JA’s analysis of each of these complaints in [42] to [66].

8. [414]

   I agree that each of the complaints is without substance, and ground 2 must be dismissed.

9. [415]

   I agree with Basten JA for the reasons he states in [67] that there should be a grant of leave with respect to ground 2 but that as both grounds must be dismissed, the appeal should be dismissed.