New South Wales Court of Criminal Appeal CITATION: Regina v Ison; Regina v Ison [2005] NSWCCA 321 HEARING DATE(S): 6 September 2005 JUDGMENT DATE: 6 September 2005 JUDGMENT OF: McClellan CJatCL at 7; Grove J at 2; Smart AJ at 8 DECISION: APPEAL ALLOWED; CONVICTIONS AND SENTENCES QUASHED; NEW TRIALS ORDERED. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - INDICTMENT SIGNED BY PERSON NOT AUTHORIZED SO TO DO PURSUANT TO STATUTE - TRIAL THEREFORE A NULLITY - EXERCISE OF DISCRETION TO ORDER NEW TRIAL R v Janceski [2005] NSWCCA 281 CASES CITED: Gerakiteys v The Queen 1984 153 CLR 317 King v The Queen 1986 161 CLR 423 Regina v Kevin Shane Ison PARTIES: Regina v Joseph Ison FILE NUMBER(S): CCA 2005/1417; 2005/1534 D. Arnott (Crown) COUNSEL: R. Button (Appellant K.S. Ison) M. Austin (Appellant J. Ison) S. Kavanagh (DPP) SOLICITORS: Tony Papac & Associates (K.S. Ison) M. Klees & Associates (J. Ison) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/41/0182 LOWER COURT JUDICIAL OFFICER: Tupman DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1417 2005/1534 McCLELLAN CJ at CL GROVE J SMART AJ 6 September 2005 REGINA v KEVIN SHANE ISON REGINA v JOSEPH ISON Judgment 1 McCLELLAN CJ AT CL: Grove J will deliver the first judgment. 2 GROVE J: Two appeals are before the Court by Kevin Ison and Joseph Ison. For reasons which will appear, it is convenient to deal with both appeals together. Each of them was tried together with other accused before Tupman DCJ and a jury and convicted on a count of maliciously inflicting grievous bodily harm with intent to do so. There is no need for present purposes to outline the facts alleged against the appellants. 3 The short point is raised that the trial was a nullity by reason of a fundamental defect in the indictment which was signed by a person other than a person authorised in accordance with the statute in such case made and provided. This Court (differently constituted) has already dealt, in R v Janceski [2005] NSWCCA 281, with the identical point in relation to the indictment. It follows from that authority that it must be determined that the trial of these two appellants was a nullity. 4 The potential outstanding issue is whether in the exercise of its discretion this Court should order a new trial. Neither counsel for the appellants suggests any reason why this Court should not exercise its discretion so to order. The consequence that the convictions are not upheld does not follow some defect such as insufficiency of evidence or the like, and the principles upon which this Court will be guided are well established in cases such as King v The Queen 1986 161 CLR 423 and Gerakiteys v The Queen 1984 153 CLR 317. 5 It is noted that these appellants were the subject of a trial previous to the one presently under appeal in which the jury was unable to agree. That matter having been noted, it seems to me that no reason is shown for not making an order for a new trial bearing in mind the highly technical basis upon which the current convictions are being quashed. 6 I propose that in each appeal, the appeal be allowed, convictions and sentences quashed and a new trial ordered. 7 McCLELLAN CJ AT CL: I agree with Grove J. 8 SMART AJ: I also agree. 9 McCLELLAN CJ AT CL: The orders of the Court will be as Grove J indicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.