Gravett v Regina

THE COURT : The appellant was convicted of a charge of conspiracy to import a prohibited import, being a commercial quantity of MDMA. He was sentenced to a period of imprisonment. He has appealed on the single ground there was not a trial in accordance with law in that the trial proceeded on more than one indictment.

An extension of time for the appeal is necessary. The Crown does not oppose the extension of time, and concedes that the appeal should be allowed. The concession was correctly made, and appropriate orders will follow. We should, however, explain why.

The defendant was one of a number of persons charged with conspiracy to import the MDMA. He and four of the other persons were tried together. The other persons included one Henry. Separate indictments were presented for each of the accused. The jury returned verdicts of guilty for three of the accused, including the appellant and Henry.

Henry appealed against conviction. His grounds of appeal included that the trial and conviction were nullities as the trial proceeded on more than one indictment. The appeal on that ground was upheld: R v Swansson; R v Henry [2007] NSWCCA 67. The Court considered that it should not depart from the longstanding rule that there could be only one indictment in the one trial, the “one trial one jury” rule, and that any change should be left to the High Court. It considered that the infringement of the rule was fundamental so as to preclude application of the proviso in s 67 of the Criminal Appeal Act 1912 . Henry’s conviction and sentence were quashed and a new trial was ordered.

The High Court subsequently refused the Crown’s application for special leave to appeal.

The appellant’s position cannot be distinguished from that of Henry. Accordingly, the orders will be that the time for appeal against conviction be extended, that the appellant’s conviction and sentence be quashed and that there be a new trial.