TECHNICALITIES GONE MAD

Calfornia has a reputation for perverse legal verdicts but the Australian State of New South Wales has become a close rival for leadership in the annals of strange verdicts and proceedings

An accused heroin dealer has had his conviction and seven-year sentence quashed because his indictment was not signed by an authorised Crown prosecutor. The Court of Criminal Appeal has ruled that the mistake was not a mere technicality but one that went "to the root of the trial".

Nicolai Halmi was charged with supplying five blocks of heroin weighing 1.789 kilograms to two people at Bass Hill in May 2000 but the District Court ordered a separate trial from his co-accused. This began on July 29, 2003, with the new indictment signed "C. Traill, Crown prosecutor on behalf of the Director of Public Prosecutions." Kate Traill did not have the authority to do so. So after Halmi, who pleaded not guilty, was found guilty after a seven-day trial, his lawyers formulated an appeal to the state's highest criminal court.

The DPP, Nicholas Cowdery, QC, said Ms Traill "was devastated" at the outcome and he said revised procedures would ensure such an error was not repeated. Justice Virginia Bell, with whom Justice Carolyn Simpson and Justice Terry Buddin agreed, said Ms Traill was a barrister in private practice and did not have the required power under section 126 of the Criminal Procedure Act. The Crown argued that it was merely a procedural irregularity and the indictment was identical to earlier ones signed by authorised prosecutors, but Justice Bell did not agree.

She said the provisions that dealt with amended indictments "seem to me to go to necessary legal formalities and not to mere practice and procedure". Justice Bell said it was irrelevant that Halmi was not prejudiced at his trial. "So much may be accepted, but this cannot cure a defect that goes to the root of the trial. The indictment on which this appellant was arraigned and upon which his trial proceeded was invalid."

At his trial, Halmi claimed there was an innocent explanation for his fingerprints being on the plastic the heroin was wrapped in. He said he had given a lift to the co-accused on the day and had no idea the man was involved in the supply of heroin. Mr Cowdery said Halmi would face a fresh trial and would not be released from prison unless he succeeded with a bail application. He said all private barristers had been given additional information "which sets out very clearly what they can and can't do".

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