Maher v R [1987] HCA 31; (1987) 163 CLR 221 (24 July 1987)

HIGH COURT OF AUSTRALIA

MAHER v. THE QUEEN [1987] HCA 31; (1987) 163 CLR 221
F.C. 87/032

Criminal Law

High Court of Australia
Mason C.J.(1), Wilson(1), Brennan(1), Dawson(1) and Toohey(1) JJ.

CATCHWORDS

Criminal Law - Indictment - Addition of new count - After jury sworn Re-arraignment of accused - Plea of not guilty - Whether indictment amended - Whether jury sworn to try issues on new counts Crimes Act 1914 (Cth), s. 21A - Oaths Act 1867 (Q.), s. 22 Criminal Code (Q.), ss. 567(2), 571, 572, 604, 607, 608, 611, 614 - Jury Act 1929 (Q.), ss. 32(3), 33.

HEARING

Canberra, 1987, March 31;
Sydney, 1987, July 24. 24:7:1987
APPEAL from Supreme Court of Queensland.

DECISION

MASON C.J., WILSON, BRENNAN, DAWSON AND TOOHEY JJ.: In the Supreme Court of Queensland on 14 October 1985 the applicant was convicted on the verdict of a jury of two offences. The first offence of which he was convicted was that:

" between about the 31st day of March 1972 and
about the 1st day of December 1978 at Southport
in the State of Queensland and elsewhere, Brian
James MAHER and John Patrick DONNELLY did
conspire together and with Lloyd Errol FAINT,
Graham David SPENCE, Alan Roy PALMER and Lee
Gabriel HURLEY and divers other persons to
defraud the Commonwealth."
count 1 in the indictment.

2. The second offence was that:

" between about the 31st day of December 1974 and
about the 1st day of May 1976 at Southport in
Queensland and elsewhere Brian James Maher and
John Patrick Donnelly did conspire together to
defraud T F & B Pty.Ltd. (formerly Penola Homes
Pty.Ltd.) of the sum of $127,534.00 by fraudulent
means".

This offence was charged under s.430 of the Criminal Code (Q.) ("the Code") by count 20 in the indictment.

3. The applicant's appeal against conviction was dismissed and his application for leave to appeal against sentence was refused by the Court of Criminal Appeal of Queensland on 20 June 1986. Originally the applicant sought special leave to appeal against the judgment of the Court of Criminal Appeal in respect of both convictions and as to sentence on the second charge. But in opening his client's case, senior counsel for the applicant abandoned the application so far as it related to the offence charged under the Crimes Act. As to the offence charged under the Code, counsel also abandoned certain grounds upon which special leave was sought. In effect, three grounds remained.

4. The first and principal ground related to the circumstances in which count 20 was added to the indictment. The ground was formulated in this way:

" The addition of Count 20 to the indictment after
the jury had been sworn was wrong in law and not
authorised by the Criminal Code (Queensland) or
any other law, whereby no jury was sworn to try
Count 20 and the conviction thereon was a
nullity".

5. To appreciate this ground, it is necessary to say something of the history of the indictment and the relationship of that history to the arraignment of the applicant, the empanelling of the jury and the trial. The original indictment was presented on 11 December 1984 and contained only counts under the Crimes Act. Counts under the Code were presented in a new indictment on 6 February 1985. At that time the indictment contained nineteen counts. Fifteen counts (including count 1) were laid under s.86(1)(e) of the Crimes Act for conspiracy to defraud the Commonwealth, and four counts were laid under s.430 of the Code for conspiracy to defraud the companies named in the indictment. On 10 May the applicant and his co-accused were arraigned. Each of them pleaded not guilty to the counts under the Crimes Act. As to the counts under the Code, each pleaded that the court had no jurisdiction to try him for the offence charged and, although the record of proceedings shows some differences in the words used, it may be taken that each pleaded not guilty as well. The pleas to the jurisdiction were overruled. A jury was then sworn and empanelled.

6. The applicant then sought an adjournment of the trial because he was without legal representation. Some short adjournments followed to enable the applicant to pursue an application for legal aid. On 22 May the Crown sought to change the indictment by deleting counts 5 and 14 and adding counts 20 and 21. Counsel for Donnelly, Mr Jerrard, objected to the addition of counts 20 and 21. He summed up his objection in these words:

" ... if what is occurring is that nolle prosequis
are being entered on an existing indictment to
which pleas have been taken, that really the
accused have a right to the selection of a new
jury in respect of either of the whole indictment
or in respect of charges which are added after
the jury was selected."

He amplified this submission by arguing that the jurors had been chosen with specific charges in view and that, if counts were added, different considerations might arise in the selection of the jury.

7. The Crown submitted that the addition of counts 20 and 21 was authorized by s.572 of the Code or by s.21A of the Crimes Act. Both provisions relate to the amendment of indictments. His Honour was of the view that, if the application was to amend the indictment, it should be dealt with in accordance with s.21A of the Crimes Act. But he doubted that what the Crown sought to do was "a matter which properly ought to be dealt with by way of indictment (sic) since what is proposed involves the abandonment of particular charges and the substitution in the indictment of new charges". His Honour thought that the matter could be dealt with under the provisions of the Code relating to the joinder of charges and it was on that basis that he acceded to the Crown's application to add counts 20 and 21. In the course of his reasons, his Honour commented:

" It is the fact - and the record will confirm
this - that the accused have pleaded not guilty
in respect of the charges in the indictment in
its original form, but for the record I wish to
make it plain that the accused have not yet been
put in charge of the jury in respect of any of
the counts alleged in the indictment."

8. Although the jury had been sworn and empanelled on 10 May, the accused had not then been put in charge of the jury. On 22 May, after counts 20 and 21 were added to the indictment and some amendments were made to counts 16 and 17, the applicant and Donnelly were re-arraigned on the new and amended counts. In taking this course his Honour said:

" I will need to have both accused re-arraigned
in respect of the new charges alleged and out of
an abundance of caution I will have them re-
arraigned in respect of the additional two
matters in respect of which I have given leave to
amend."

The accused pleaded not guilty to the charges in counts 16, 17, 20 and 21, and pleaded as well that the court had no jurisdiction to hear those charges. Their pleas to the jurisdiction were overruled. After the pleas had been taken, his Honour directed that both accused be put in charge of the jury. His associate placed the accused in the charge of the jury in respect of all counts remaining, being counts 1-4, 6-13 and 15-21.

9. The applicant was unrepresented on 22 May. His Honour noted that:

" Mr. Maher has declined my invitation to adopt
any of the submissions made by Mr. Jerrard nor
has he advanced any of his own."

However, his Honour said that he could not see any matter of substance which could be advanced on behalf of the applicant over and above what had been said on behalf of Donnelly. On 19 September 1985 counts 20 and 21 were amended by adding the words "by fraudulent means", but nothing turns on those additions. At the close of the Crown case the trial judge ruled that there was no evidence to establish the charges under the Crimes Act in counts 2 to 15. As to the six counts under the Code, his Honour allowed three to go to the jury including counts 20 and 21. As already mentioned, the applicant was convicted of the offence charged by count 20 and it is against that conviction he seeks special leave to appeal.

10. It follows from this account of the proceedings that no further challenges to the jury were permitted consequent upon the addition of counts 20 and 21 to the indictment; nor was the jury sworn expressly to try the issues arising from the pleas of the accused to those counts. Therefore, it was submitted on behalf of the applicant, the conviction of the applicant on count 20 was a nullity or alternatively involved a miscarriage of justice warranting a new trial.

11. Before considering the implications of what took place at the trial, it is advisable to explain why count 5 was deleted and count 20 added. Count 5 alleged a conspiracy between the applicant and his co-accused Donnelly with Faint, Manners and "divers other persons" to defraud the Commonwealth. The overt acts relied upon were formulated at length and in detail. They concerned T.F. & B. Pty.Ltd., formerly Penola Homes Pty.Ltd. Oversimplified, it was alleged that the applicant and Donnelly decided to purchase all the shares in Penola Homes Pty.Ltd., to appropriate the company's money to their own use, and to take steps to ensure that the company could not or would not recover its money, so that the company would not have money available for payment of the company's income tax for 1975. It was said that the total funds of the company, $1,866,711.00, were paid into the account of B.J. Maher & Co. and later into another account. These events were said by the Crown to constitute a fraud upon the company as well as upon the Commonwealth, and as a consequence count 5 was withdrawn and count 20 added.

12. Count 20 alleged a conspiracy between the applicant and Donnelly, not with anyone else. The overt acts as formulated were virtually identical with those in count 5. The significant difference was that in count 5 the overt acts focused on the tax payable in respect of the year 1975, while in count 20 they referred to the tax payable in respect of years 1972, 1973 and 1974 as well. In arguing the case for adding count 20, counsel for the Crown told the trial judge that the evidence led at the committal demonstrated not only non-payment of tax in respect of 1975 but showed also that at the time of the acquisition of Penola Homes Pty.Ltd. by the applicant and Donnelly, funds had been earmarked for tax liabilities for the years 1972, 1973 and 1974. Those funds were included in the moneys said to have been appropriated by the applicant and Donnelly in fraud of the company.

13. Counsel for Donnelly acknowledged before the trial judge that the evidence relating to the new charges had been led during the committal proceedings, and counsel for the applicant before this Court did not suggest otherwise. It is appropriate now to look at the relevant statutory provisions governing the course of a criminal trial in Queensland.

14. Chapter LXII of the Code is concerned with trial, adjournment, pleas and practice. Section 594 provides that, at the time appointed for the trial, the accused is to be informed in open court of the offence with which he is charged, as set forth in the indictment, and is to be called upon to plead to the indictment and to say whether he is guilty or not guilty of the charge. The trial is deemed to begin when the accused is so called upon. If the accused does not apply to quash the indictment or move for a separate trial of any count or counts, he must plead to the indictment or demur to it on the ground that it does not disclose any offence cognizable by the court. The pleas are prescribed by s.598. They are guilty, not guilty, autrefois convict, autrefois acquit, a plea that the accused has already been tried and convicted or acquitted of an offence under such circumstances that he cannot under the Code be tried for the offence charged in the indictment, a plea that the accused has received the Royal pardon for the offence charged, or a plea that the court has no jurisdiction to try him for the offence.

15. The significance of a plea of not guilty is explained by Brennan J. in Kingswell v. The Queen [1985] HCA 72; (1985) 159 CLR 264, at p 287:

" When an accused pleads not guilty to an
indictment, the whole of the issues on which the
accused's guilt of the offence charged depends
are joined between the Crown and the accused and
those are the issues to be tried by the jury:
Chitty's Criminal Law, 2nd ed. (1826), vol.1,
pp.470-471, 532. The jury's function is to try,
and to try only, the issues joined between the
Crown and an accused when the accused pleads to
the indictment."

16. If the accused pleads other than a plea of guilty or a plea to the jurisdiction of the court, he is by such plea deemed to have demanded that the issues raised by the plea be tried by a jury and is entitled to have them tried accordingly: s.604. The Code thus retains trial by jury as the essential mode of trial of issues raised by a plea of not guilty. The manner in which a jury panel is to be summoned and juries are to be formed is prescribed in part by the Code and in part by the Jury Act 1929-1981 (Q.): see s.607 of the Code and s.33 of the Jury Act.

17. When an accused has demanded to be tried by a jury, the proper officer of the court is to inform him in open court that the persons whose names are to be called are the jurors to be sworn for his trial and further to inform him that, if he desires to challenge any, he must do so before they are sworn: s.608. An objection to a juror, by way of peremptory challenge or for cause, may be made "at any time before the officer has begun to recite the words of the oath to the juror, but not afterwards": s.611.

18. By s.32 of the Jury Act, provision is made that when "any trial or any issue joined on any indictment ... shall be brought on to be tried", the proper officer shall follow the procedure in that section of mixing the cards within the box provided for the purpose and then drawing the cards and calling the names until the full number of jurors appears and "remains approved as indifferent". The oath required of jurors by s.22 of the Oaths Act 1867-1981 (Q.) reads as follows:

" You shall well and truly try and true deliverance
make between our Sovereign Lady the Queen and the
prisoner ... at the bar ... whom you shall have
in charge and a true verdict give according to
the evidence So help you God."

Section 614 of the Code provides:

" The jury are to be sworn to give a true
verdict according to the evidence upon the issues
to be tried by them.

When the jury have been sworn, the proper
officer of the Court is to inform them of the
charge set forth in the indictment, and of their
duty as jurors upon the trial."

19. These provisions spell out the sequence of the steps to be taken to put an accused who pleads not guilty in charge of the jury: the indictment is presented, the accused is called upon to plead, he pleads not guilty, he is informed of his right of challenge, the jurors are called one by one, each member of the jury is sworn to try the issues, and the proper officer of the court gives the accused in charge of the jury. Giving the accused in charge of the jury is a traditional part of the criminal procedure: see Archbold, Pleading, Evidence and Practice in Criminal Cases, 42nd ed. (1985), par.4-176. The procedure, of long historical standing, is described by Dearsly, Criminal Process, (1853), p.49:

" The jury being sworn and assembled in their box,
the clerk of arraigns addresses them thus, 'Look
upon the prisoner, you that are sworn, and
hearken to the evidence.' He then proceeds to
read an abstract of the indictment ... after
which he adds, 'Upon this arraignment he has
pleaded not guilty, and for his trial hath put
himself upon the country, which country you are;
so that your charge is to inquire whether he be
guilty of the felony whereof he stands indicted,
or not guilty.'"

For an account of earlier times, see Forsyth, History of Trial by Jury, (1852), pp.206-207. By a plea of not guilty, an accused puts himself "upon the country" or, to use the words of the Code, demands to be tried by a jury and he must be put in charge of the jury to inquire whether he is guilty or not guilty of the offence to which he has pleaded. The course of procedure contemplated by the Code and the Jury Act calls for the proper officer to give the accused in charge of the jury on those offences charged in the indictment which the jury have been sworn to try. The issues to be tried are raised before the jury is sworn and empanelled, not afterwards. It is generally true to say that the jury cannot try issues which they have not been sworn to try and therefore that an accused cannot be put in charge of the jury to inquire whether he is guilty or not guilty of an offence to which he has not pleaded when the jury is sworn.

20. However, reference should be made to certain statutory provisions which affect the issues on which a jury may return a verdict. The first is to be found in the second proviso to s.32(3) of the Jury Act:

" Provided also that where no objection shall be
made on behalf of the King or any other party it
shall be lawful for the Court to try any issue
with the same jury that shall have previously
tried or been drawn to try any other issue
without their names being returned to the box and
redrawn ... ."

The second proviso to s.32(3) of the Jury Act thus extends, subject to the condition stated, the authority of a jury to try issues further to those which they are first directed to try. But the proviso does not purport to authorize the raising of further issues for trial after the jury is sworn. The only provisions authorizing the raising of new issues after a jury is sworn are those relating to amendment of indictments.

21. At common law an indictment could not be amended. Until the abolition of the grand jury, "it seemed impossible to amend an indictment by adding a fresh cumulative charge after the bill of indictment had become an indictment, for the indictment was the finding of the Grand Jury - Short and Mellor's Crown Practice, 2nd ed. 139": per Turner J. in Harema v. The Queen (1971) NZLR 147, at p 149. In the United Kingdom, a wide power of amendment was conferred by the Indictments Act 1915. But in proceedings governed by the Code, the only power of amendment (other than to correct formal defects, as to which see s.571) is to be found in s.572 of the Code which provides in part:

" If, on the trial of a person charged with an
indictable offence, there appears to be a
variance between the indictment and the evidence,
or it appears that any words that ought to have
been inserted in the indictment have been
omitted, or that any words that ought to have
been omitted have been inserted, the Court may,
if it considers that the variance, omission, or
insertion, is not material to the merits of the
case, and that the accused person will not be
prejudiced thereby in his defence on the merits,
order the indictment to be amended, so far as it
is necessary, on such terms, if any, as to
postponing the trial, and directing it to be had
before the same jury or another jury, as the
Court may think reasonable".

In proceedings under the Crimes Act, a power to amend an indictment is conferred by s.21A in terms which partially correspond with the provisions of s.572 of the Code.

22. Having sketched the statutory context in which this appeal arises, it is necessary to turn to the submissions of the parties. The applicant's argument was that, in respect of any trial or issue joined on an indictment, the procedure prescribed by s.614 of the Code and s.32 of the Jury Act must be followed. This meant that when the applicant pleaded to count 20 after it was added to the indictment, a jury had to be sworn to give a true verdict according to the evidence upon the issues raised by that plea. But the applicant's case went further than that. Both accused should then have been informed of their right to challenge again any member of the jury, for cause or peremptorily. It was submitted that, even if the second proviso to s.32(3) of the Jury Act could have been invoked to save empanelling a new jury, the jury already empanelled to try the issues arising on the pleas to the indictment in its original form could not be charged to return a verdict on the additional counts unless the applicant and his co-accused had been asked, "Do you have any objection to the jurors already chosen trying you upon these two further charges?" and had not objected. This course was not taken.

23. Thus, there were two objections to the course taken at the trial, each of which, it was submitted, rendered the trial a nullity or brought about a miscarriage of justice. The first objection related to the failure of the trial judge to inform the accused of their right to challenge the empanelled jury in regard to the additional counts. The second objection arose from the fact that the jury had not been sworn to give a true verdict upon the issues to be tried by them, because some of those issues related to counts that did not form part of the indictment when the members of the jury took their oaths.

24. The Crown's submission, which essentially relied upon the judgment of the Court of Criminal Appeal, was that s.567(2) of the Code permitted the joinder of charges and did not preclude the joinder of new counts before the Crown opened its case and evidence was taken. It was submitted that the power to amend the indictment should be liberally construed and that, in any event, there is nothing in the Code, in the Jury Act or elsewhere to preclude amendment of an indictment after arraignment. The applicant had been re-arraigned after amendment and had then been put in charge of the jury. Thereupon the second proviso to s.32(3) of the Jury Act was said to operate to empower the jury to return a verdict on the additional counts. Counsel pointed to the oath taken by jurors which, as noted earlier, is to give "a true verdict according to the evidence", not to give a verdict on the counts in the indictment when the jury is sworn. The Crown's final submission was that if there had been non-compliance with one of the statutory provisions to which reference has been made, the non-compliance constituted no more than an irregularity, the evidence relating to the additional counts had been led in its entirety at the committal proceedings and as a result there had been no substantial miscarriage of justice.

25. In permitting the Crown to add counts 20 and 21, the trial judge did not purport to order an amendment of the indictment under either s.21A of the Crimes Act or s.572 of the Code. He held that counts 20 and 21 could be added to the indictment under the provisions of s.567 of the Code. Section 567 provides for a joinder of counts in an indictment in certain cases which are exceptions to the general rule that an indictment must charge one offence only. It prescribes a rule of pleading, not a rule of procedure. Unlike s.572 it confers no power on the court to order a change to be made to the indictment. It forbids the Crown to join more than one count in an indictment except in the cases it prescribes, but it says nothing as to the addition of counts to an indictment after a trial has commenced, and nothing as to the trial of the issues raised by a plea to a count added after the trial has commenced.

26. The only issues which a jury could have been sworn and empanelled to try on 10 May were the issues then raised by the applicant's pleas to the 19 counts then charged in the indictment. Those were the issues on which the jury were entitled and could be charged to return their verdicts. If, at trial, any of the conditions prescribed by s.21A of the Crimes Act or s.572 of the Code had been satisfied, it would have been open to the Court to order the indictment to be amended pursuant to that provision. The trial would have proceeded upon the amended indictment. Had the indictment been amended pursuant to s.572, the same consequences would have ensued "in all respects and as to all persons, as if the indictment had been originally in its amended form". It would not have been necessary to empanel a new jury (unless the court otherwise directed) or to reswear the original jury to try the issues arising on the amendment. It may be that the same consequences would have ensued had the indictment been amended pursuant to s.21A of the Crimes Act but, for the reasons next appearing, it is not necessary to consider that question.

27. As already mentioned, the trial judge did not purport to exercise a power under either s.21A of the Crimes Act or s.572 of the Code to amend the indictment by adding counts 20 and 21. In our respectful view, he was right in declining to do so. Neither the conditions prescribed by s.21A nor the conditions prescribed by s.572 were satisfied. The relevant condition in s.21A is that there be a variance between the indictment and "the evidence adduced at the hearing". As counts 20 and 21 were added before any evidence was adduced at the hearing, the power conferred by that provision could not have supported their addition. Nor did s.572 of the Code provide any support. Whether or not the prosecution might have been able to satisfy other conditions, it could not have been said of count 20 that "the variance, omission, or insertion, is not material to the merits of the case". Count 20 was not count 5 in an amended form. The former was a charge under the Code, the latter a charge under the Crimes Act. The former carried a maximum penalty of seven years imprisonment, the latter a maximum of three years. The persons said to have participated in the conspiracy the subject of count 5 were not identical with the persons said to have conspired in count 20. While the evidence may have been much the same in both cases, the evidence necessary to make good count 5 was not the same evidence as that required to make good count 20. The relevant intention to defraud was different in each case, even though the facts relied upon to establish intention may have been the same or similar. As there was no provision authorizing an amendment of the indictment by adding counts 20 and 21, the issues which the jury were to try could not include issues raised by a plea of not guilty to those counts. Re-arraigning the applicant on the new counts and giving him in charge of the jury on the new counts did not alter the issues which the jury had been sworn to try. The jury oath of 10 May did not extend to issues which could not be lawfully added to the issues then raised by the pleas to the 19 counts in the indictment. The plea of not guilty to the offence charged in count 20 did not raise issues for trial by the jury then sworn, yet that jury found the applicant guilty of the offence charged in that count. They had not been sworn to return a verdict on that count.

28. The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s.604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorized by law to try the issues raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v. Public Prosecutor (1921) 2 AC 299. In any event it involves such a miscarriage of justice as to require the conviction to be set aside. Thus, in Reg. v. Smith (1954) QWN 49 a trial was regarded as a nullity because a challenge for cause had been wrongly determined by the judge and not by the jurors. The converse situation arose in Reg. v. Hall (1971) VR 293 where the trial judge directed jurymen to try a challenge for cause when the relevant statute required the judge to try any challenge. The conviction was set aside. A similar view was taken in Reg. v. Short (1898) 19 LR(N.S.W.)385. There a juryman was taken ill and the remaining jurymen were discharged but did not leave the jury box. Another juryman was called and sworn but the other eleven jurymen were not resworn. Judgment against the prisoner was reversed for error on the record. Again, in R. v. Dempster (1924) SASR 299, when it appeared that one of the jurors while duly empanelled and chosen had not been sworn, the court directed the record to be amended by expunging all entries subsequent to the plea of not guilty.

29. The principle is clear. A jury must be sworn to try the issues joined between the Crown and the applicant on a count then appearing in an indictment. Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect. Special leave should be granted to the applicant on that ground (it being unnecessary to determine the other grounds upon which the applicant relied) and the conviction of the applicant for the offence charged by count 20 of the indictment should be set aside.

30. The need for an order for a new trial of the applicant on the present indictment depends on the validity of the addition of count 20. As there was no power to order or permit count 20 to be added to the indictment, there should be no order for a new trial on that indictment. The prosecuting authorities may be advised to present a new indictment charging the offence alleged in count 20. Neither the verdict of the jury nor the order now pronounced determines any issues which would arise on a plea to an indictment framed in the same terms as count 20.

31. Perhaps it should be added that it has not been necessary to determine any question relating to the joinder in the one indictment of charges under the laws of the Commonwealth and charges under the laws of a State nor to consider what are the applicable procedural laws to apply to a trial on any such indictment.

ORDER

Application for special leave to appeal granted.

Appeal allowed. Order that the order of the Court of Criminal Appeal of Queensland dated 20 June 1986 in so far as it dismissed the appeal against conviction of the offence charged in count 20 of the indictment be set aside and in lieu thereof order that the appeal to that court in respect of count 20 be allowed, set aside the conviction and sentence on that count.