SUPREME COURT OF QUEENSLAND

HOLMES JA:  The appellant was convicted after a trial of six counts of unlawfully using a motor vehicle to facilitate the commission of an indictable offence and four counts of armed robbery in company.  He was acquitted of a further two counts of armed robbery in company.  He appeals his conviction on the ground that evidence of three police interviews and three witness statements made by him were wrongly admitted with the result, as the appeal notice puts it, that the convictions are “unsafe and unsatisfactory”. 

However, it is clear that the convictions must, in any event, be set aside for other reasons.  Mr Copley SC for the Crown has pointed to fundamental errors which make it proper that the notice of appeal be amended in terms which he has helpfully suggested:

“That a miscarriage of justice occurred because the appellant was not lawfully convicted of any count.”

The reason for that can be shortly stated.  Firstly, the counts against the appellant were contained on two separate indictments on which he was arraigned before the jury.  Counsel for both the appellant and the Crown at first instance seem to have proceeded on the assumption that indictments, like charges, could be joined, although nothing in the Criminal Code permits any such form of joinder and s 597A, which deals with the ordering of separate trials, plainly contemplates a situation where more than one offence may be charged in the same indictment, but not the possibility of a single trial on separate indictments. 

 But much more remarkable, after both the Crown and defence cases had closed, the trial Judge expressed his concern that he could not find any statutory provision permitting trial on separate indictments.  The defence obligingly consented to the entering of a nolle prosequi to each of the two existing indictments and the presentation of a fresh indictment combining all charges.  The appellant was discharged on the original indictments and verdicts were taken on the counts of the new indictment although he had not been arraigned on it, no plea had been taken, no trial had proceeded in respect of it and the jury was not sworn to return a verdict on the counts on it.  The convictions must be set aside.

In Maher v The Queen[1] it was said of such a situation that a failure to comply with the requirements of the Code may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal.  In any event, it involves such a miscarriage of justice as to require the conviction to be set aside.  It does not matter for present purposes whether the result is a miscarriage of justice requiring setting aside of the convictions, or convictions which are a nullity.  Mr Copley has helpfully drawn the Court’s attention to R v Cockrell[2] in which this Court reached the conclusion that where criminal proceedings were a nullity, a new trial could be ordered.

In the extraordinary circumstances of this case, the proper orders are:

1.  The appeal should be allowed.
2.  The verdicts of guilty should be set aside.
3.  A new trial must be ordered on indictment number 907 of 2009.

MUIR JA:  I agree.

WHITE JA:  I agree.

HOLMES JA:  Those are the orders.