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

Reported Decision: 168 A Crim R 263 Appeal Outcome: Special leave refused by the High Court - 15 June 2007

New South Wales Court of Criminal Appeal

CITATION: David Anthony SWANSSON v REGINA; Peter James HENRY v REGINA [2007] NSWCCA 67 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 8 February 2007

JUDGMENT DATE: 21 March 2007

JUDGMENT OF: Spigelman CJ at 1; McClellan CJ at CL at 83; Sully J at 96; Simpson J at 120; Howie J at 181

DECISION: In the matter of Henry; 1 Appeal allowed; 2 Convictions and sentences quashed; 3 A new trial be held; In the matter of Swansson; 1 Leave to add additional ground of appeal granted.

CATCHWORDS: CRIMINAL LAW – Appeal – New South Wales - Powers of the appellate court to hear a matter – Whether a null trial means the trial has no legal effect and is not subject to an appeal – whether "convicted on indictment" in s5(1) Criminal Appeal Act 1912 refers only to a valid conviction on a valid indictment - - CRIMINAL LAW – Appeal – New South Wales – Miscarriage of justice – power to dismiss an appeal where no substantial miscarriage of justice has occurred – proviso – Criminal Appeal Act 1912, s6(1) - CRIMINAL LAW - Jurisdiction, practice and procedure - Prosecution - Filing of information, presentment or indictment - one indictment, one jury – where two co-accused tried on two indictments – where one accused tried on two indictments - WORDS & PHRASES – "nullity"

Criminal Appeal Act 1907 (UK) Criminal Appeal Act 1912; s5(1); s6(1); s8(1) Criminal Appeal Rules 1952; r4 LEGISLATION CITED: Criminal Code Act 1995 (Cth); s11.5 Criminal Procedure Act 1986; s21; s23; s46(2); s129; s130; s164 Customs Act 1901 (Cth); s233B(1)(d) District Court Act 1973; s166 Justices Act 1902