SUPREME COURT OF QUEENSLAND

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1 SUPREME COURT OF QUEENSLAND CITATION: R v Ford; ex parte A-G (Qld) [2006] QCA 440 PARTIES: R v FORD, Garry Robin (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND FILE NO/S: CA No 189 of 2006 DC No 1253 of 2006 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Reference under s 668A Criminal Code District Court at Brisbane DELIVERED ON: 3 November 2006 DELIVERED AT: Brisbane HEARING DATE: 29 September 2006 JUDGES: ORDER: Jerrard and Keane JJA and Jones J Separate reasons for judgment of each member of the Court, each concurring as to the order made The questions referred to this Court are answered as follows: Question 1: No Question 2: No CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - MISCELLANEOUS MATTERS - QUEENSLAND - CASE STATED AND REFERENCE OF QUESTION OF LAW - indictment presented in District Court alleging against respondent nine counts of indecent treatment of a child under 16, one count permitting a person not an adult to have carnal knowledge of him by anal intercourse, one count of indecent treatment of a child under 16 as alternative to count of attempted carnal knowledge by anal intercourse of a person not an adult same complainant in each case - counsel for respondent objected to presentation of the indictment - indictment included six counts on which respondent had been committed for trial and six counts which prosecution sought to add ex officio to the previous six counts - whether, if an indictment has been presented against a person as required by s 590 of Criminal Code 1899 (Qld) and six months have passed

2 2 since that person was committed for trial, does that section preclude the Crown from presenting and proceeding upon another indictment containing the counts included in the original indictment and further counts upon which the person has not been committed for trial? - whether, if an indictment has been presented against a person as required by s 590 of the Criminal Code and six months have passed since that person was committed for trial, does that section preclude the amendment of the indictment by including further counts upon which the person has not been committed for trial? Criminal Code 1899 (Qld), s 554, s 560, s 561, s 572, s 590, s 668A Barton v The Queen (1980) 147 CLR 75, cited Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1970) 122 CLR 504, cited Jago v District Court of New South Wales (1989) 168 CLR 23, cited Re Jenkin [1994] 1 Qd R 266, considered R v Foley [2002] QCA 422; [2003] 2 Qd R 88, considered COUNSEL: SOLICITORS: C W Heaton for the Attorney-General P J Callaghan SC, with J A Fraser, for the respondent Director of Public Prosecutions (Queensland) for the Attorney- General Richard Gray & Associates for the respondent [1] JERRARD JA: In this matter I have read the reasons for judgment of Keane JA and agree with him that both questions should be answered no. This matter raises no deeper question than the procedure by which an ex-officio count or counts is/are joined to a count on which there has been a committal for trial, in circumstances where those counts are properly joinable. Separate trials on the ex-officio counts would be an unnecessary waste of money in those cases, because the evidence on all counts would be admissible on the trial relating to each variety. One obvious method of joinder is the presentation of an indictment which contains both the count or counts on which there has been a committal, and the count or counts which are ex-officio. Section 590 says nothing about that procedure, and s 590 of the Criminal Code 1899 (Qld) expressly does not limit the power given by s 561 to present an ex-officio indictment. [2] Nor does s 590 say anything about the amendment of an indictment, for which s 572 makes provision. While that section does presume that an indictment can be amended by adding a count to it, adding six new counts to an indictment already containing that number appears, at first blush, to be doing much more than amending it. But no question on the breadth of s 572 was referred to the Court. [3] KEANE JA: On 2 May 2006, an indictment was presented in the District Court alleging against the respondent nine counts of indecent treatment of a child under 16 years of age, one count of permitting a person not an adult to have carnal knowledge of him by anal intercourse, and a further count of indecent treatment of a child

3 3 under 16 years of age as an alternative to a count of attempted carnal knowledge by anal intercourse of a person not an adult. The complainant was the same in each case. The offences were alleged to have occurred between December 1992 and the end of December The objection to the indictment [4] When the indictment was presented, counsel for the respondent objected to the presentation of the indictment. The basis for the respondent's objection was that s 590 of the Criminal Code Act 1899 (Qld) ("the Criminal Code") prevented the presentation of the indictment. [5] In this regard, counts 1 to 6 on the indictment related to charges on which the respondent had been committed for trial in June An indictment in respect of those offences had been presented in the District Court on 10 December Counts 7 to 12 on the indictment related to matters in respect of which the respondent had not been committed for trial in June 2001 because, at the preliminary hearing in relation to those matters, the complainant had not given evidence sufficient to support those charges even though his earlier statement to police did support the charges. The new indictment sought to add, ex officio as it were, these latter six counts to those counts which had been the subject of the indictment presented on 10 December [6] The Crown sought to present the new indictment to combine all the offences alleged by the complainant against the respondent in one indictment for trial. A nolle prosequi was to be entered in relation to the indictment of 10 December The ruling [7] The learned trial judge upheld the respondent's objection, and declined to receive the new indictment. His Honour held: "It would, as I understand it, be open to the Crown to present an ex officio indictment in respect of the six matters in respect to which the accused was not committed to trial But what it does seem to me that the parliament had precluded is, in the circumstances of this case, bringing together as the Crown now seek to do essentially six counts on which the Crown is proceeding by way of ex officio indictment and the six in which the proper procedures required by [s 590(1)] have been complied with. I take the view, albeit with some considerable hesitation, that the parliament has proscribed the course that the Crown now seeks to take and hence it seems to me that I should decline to receive the new indictment " The questions for this Court [8] Pursuant to s 668A of the Criminal Code, the Attorney-General has referred to this Court the following questions: "1. If an indictment has been presented against a person as required by section 590 of the Criminal Code and 6 months have passed since that person was committed for trial; does that section preclude the Crown from presenting and proceeding upon another indictment containing the counts included in the original indictment and further counts upon which the person has not been committed for trial?

4 4 2. If an indictment has been presented against a person as required by section 590 of the Criminal Code and 6 months have passed since that person was committed for trial; does that section preclude the amendment of the indictment by including further counts upon which the person has not been committed for trial?" [9] It should be said immediately that his Honour's ruling was not made on any basis other than his Honour's view of the preclusive operation of s 590 of the Criminal Code. Thus, his Honour was not exercising a discretion to avoid injustice or unfairness, whether by reason of delay in the presentation of the ex officio indictment, or inappropriate joinder of counts, or otherwise. 1 His Honour's ruling, and the questions of law which arise from it, depend solely on the interpretation of s 590 of the Criminal Code. I turn, therefore, to a consideration of s 590. The statutory provisions [10] The section must, of course, be understood in its statutory context. It is, therefore, necessary to consider a number of other provisions of the Criminal Code before focussing attention directly upon the effect of s 590. [11] Section 554 of the Criminal Code adopts "[t]he practice and procedure relating to the examination and committal for trial of persons charged with indictable offences" from the "laws relating to justices of the peace, their powers and authorities". These laws are contained in Pt 6 of the Justices Act 1886 (Qld), which provides for committal proceedings. [12] Section 560 of the Criminal Code provides for the presentation of indictments to either the Supreme Court or District Court after committal for trial. Section 561 of the Criminal Code authorises the presentation by a Crown Law Officer of an indictment "whether the accused person has been committed for trial or not". [13] Section 572 of the Criminal Code provides: "(1) 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 any count that ought to have been included in the indictment has 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 the person s 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. (2) The indictment is thereupon to be amended in accordance with the order of the court. (3) If the court is satisfied no injustice will be done by amending the indictment, the court may make the order at any time before, or at any stage of, the trial on the indictment, or after verdict. (4) When an indictment has been amended, the trial is to proceed, at the appointed time, upon the amended indictment, and 1 Cf Barton v The Queen (1980) 147 CLR 75 at 96-99, , 103, 109.

5 5 the same consequences ensue, in all respects and as to all persons, as if the indictment had been originally in its amended form. (5) If it becomes necessary to draw up a formal record in any case in which an amendment has been made, the record is to be drawn up setting out the indictment as amended, and without taking any notice of the fact of the amendment having been made." [14] Section 590 of the Criminal Code provides: "(1) Subject to section 561 (Section 561 (Ex officio indictments)), when a person charged with an indictable offence has been committed for trial and it is intended to put the person upon his or her trial for the offence, the director of public prosecutions or a Crown prosecutor must present the indictment no later than 6 months after the date on which the person was committed for trial. (2) If - (a) an indictment is not so presented; or (b) it becomes apparent that evidence necessary to establish the offence is not going to be available; or (c) the accused has absconded and is not likely to be found before the expiry of the period; or (d) for any other reason it is impracticable to present the indictment; the director of public prosecutions or a Crown prosecutor may apply to the court at any time before or after the expiry of the period for an extension of time within which to present an indictment. (3) The court hearing the application may, if satisfied that good cause is shown and no miscarriage of justice is likely to result, grant the extension of time the court considers just. (4) If an indictment is not presented before the expiry of the period or any extension of the period, the person is entitled to be discharged from the consequences of his or her committal." (citation footnoted in original) The first question [15] Any discussion of the questions posed for the opinion of this Court must commence with the observation that s 590(1) makes no reference at all to the addition of counts to an indictment, but does make s 590 subject to s 561. Section 590 does not expressly prohibit the course which the Crown sought to take in this case. Since s 590 does not address at all the subject matter of the inclusion of counts in an indictment, it is difficult to see that it is apt to proscribe by implication the inclusion of any count in an indictment. Further, the express provisions of s 590 make it clear that the authority conferred by s 561 to present an indictment "whether the accused has been committed for trial or not" is not intended to be cut down by any of the provisions of s 590. It is, therefore, difficult to see how the course which the Crown sought to take in this case was precluded by s 590(1) of the Criminal Code. [16] It is also clear that the terms of s 590(4) are not apt to cut down the authority conferred by s 561. There are two reasons why this is so, quite apart from the consideration that s 590 is expressed to be subject to s 561. The first is that s 590(4) is, on its face, concerned to prescribe the consequences of non-presentation within

6 6 the period of six months after a committal: it says nothing about indictments presented ex officio. [17] Secondly, it is well settled by authority that the "consequences of committal" referred to in s 590(4) are not an automatic discharge from criminal responsibility for the matters charged in the indictment. As is apparent from the decision of the Full Court of the Supreme Court in Re Jenkin, 2 the "consequences of committal" are the constraints upon the liberty of the accused by way of remand pending trial or conditions upon bail granted pending trial. It is from these consequences that s 590(4) of the Criminal Code relieves the accused. Section 590(4) is not intended to remove the accused from jeopardy of prosecution. The language in which it is cast is distinctly not apt to achieve such a result. In Re Jenkin, Mackenzie J surveyed the authorities relating to s 590 and its analogues, and concluded: 3 "The weight of authority supports the view that a discharge under s.590(3) does not have the effect of preventing the Crown from bringing further proceedings against the person who has been discharged, for the alleged offence in respect of which she has been discharged. Any remedy that the respondent has, in my view, will be found to lie, if at all, in the realm of the court's inherent jurisdiction to stay proceedings in the event of abuse of process or oppression. It is neither necessary nor desirable to express any view in respect of this especially as if the matter becomes an issue it will no doubt be considered on different material from that which is before us." [18] It is particularly significant here that a recommendation was made in the Final Report of the Criminal Code Review to amend s 590 to give effect to the view that a failure by the Crown to comply with s 590 should result in an absolute discharge from liability to further prosecution. 4 This view had been expressed in the dissenting judgment of Thomas J in Jenkin. 5 The legislature did not accept the Review Committee's recommendation when s 590(4), which had been s 590(3), was re-enacted by the amending Act of In this regard, the existence of the broader, but more nuanced, discretionary power to stay proceedings for delay on the basis of unfairness, recognised in the authorities such as Jago v District Court of New South Wales, 7 may have been thought to afford a sufficient remedy for undue delay in bringing an accused to trial. [19] In my respectful opinion, s 590(1) of the Criminal Code does not preclude the course which the Crown sought to take in this case. [20] Mr Callaghan SC, who appeared with Mr J Fraser of Counsel for the respondent, submitted that the express mandatory provisions of s 590(1) of the Criminal Code necessarily conveyed the negative implication that an indictment cannot be presented at all more than six months after a person has been committed for trial for the offences charged in the indictment. This negative implication is confirmed, so it was submitted, by the permissive provisions of s 590(2)(d) of the Criminal Code [1994] 1 Qd R 266. [1994] 1 Qd R 266 at 283. Final Report of the Criminal Code Review Committee to the Attorney-General, June 1992, See [1994] 1 Qd R 266 at Cf Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1970) 122 CLR 504 at 516, ; [1974] AC 810 at 820. (1989) 168 CLR 23 at 32-34, 48-49, 56-58, 71-72,

7 7 [21] This submission cannot be accepted. The negative implication relied on by the respondent is inconsistent with the express provision in s 590(4) in respect of the consequences of non-compliance with s 590(1) (as s 590(4) was interpreted in Re Jenkin). It was not submitted on the respondent's behalf that Re Jenkin was wrongly decided. Nor could it have been so submitted having regard to the legislative approval given to the view of the majority in Re Jenkin as to the operation of s 590(4) by the re-enactment of that provision subsequent to the decision in Re Jenkin. [22] Mr Callaghan also submitted that s 561 did not permit the presentation of the new indictment because it contained six counts on which the respondent had been committed for trial. Mr Callaghan relied upon the observation in R v Foley 8 that s 561 "does not permit the presentation of an ex officio indictment for an offence in respect of which a defendant has been committed for trial". [23] It is necessary to understand that R v Foley was concerned with an application for the permanent stay of an indictment charging the accused with one count of assault. One ground of the application was that: 9 "the Crown having been refused an extension of time within which to present an indictment (pursuant to s 590 of the Criminal Code) could not rely on s 561 of the Criminal Code to authorise a presentation of an indictment in exactly the same terms." (emphasis added) The dicta upon which Mr Callaghan seeks to rely must be understood in the context of the Court's rejection of the argument by the Crown that the words in s 590(1) "subject to s 561" went so far as to authorise the presentation of an ex officio indictment for the same offence in respect of which the defendant had been committed for trial. The Court said: 10 "Before the amendment, s. 590 and s. 591 appeared together to require the prompt prosecution by indictment of all indictable offences whether following a committal or not. However Mr Meredith submitted that the addition of the words 'Subject to section 561' at the commencement of s. 590 permitted an ex officio indictment for an offence to be presented pursuant to s. 561 at any time notwithstanding a failure to comply with s. 590(1) and a refusal of an application for an extension of time under s. 590(2) and (3) in respect of that offence. Mr Moynihan for the applicant submitted that such a construction would deprive s. 590 of its apparent purpose to which we have referred. It would, to say the least, be odd if the valuable safeguard provided to a defendant by s. 590 could be circumvented in every case by the presentation of an ex officio indictment by a person nominated in s. 561 (There is no hint either in the Explanatory Notes or in the Second Reading Speech as to the purpose of the addition of the phrase 'Subject to section 561'. Nor does it appear at which stage in the drafting process it was added. The Explanatory Notes state that the 1997 amendments 'represent the outcome of an extensive consultation strategy commencing with Cabinet s establishment of the Advisory Working Group in April 1996'. However the report of [2002] QCA 522; [2003] 2 Qd R 88 at 96 [25]. [2002] QCA 522; [2003] 2 Qd R 88 at 90 [1]. [2003] 2 Qd R 88 at [23] - [27] (citations footnoted in original).

8 8 the Advisory Working Group did not propose any amendment to s. 590) without the benefit of the safeguard provided by s The purpose of s. 561 appears to have been to permit the presentation of an indictment for an indictable offence against a person, notwithstanding that that person has not been committed for trial on that offence (See R. v. Webb [1960] Qd.R. 443 at 447; Ex parte Johnson and Edwards (1979) 2 A.Crim.R. 414 at A common example is where a magistrate has refused to commit the defendant for trial: R. v. Baxter (1904) 5 S.R. (N.S.W.) 134; Barton v. R. (1980) 147 C.L.R. 75 at 99, 105). We would construe the phrase 'whether the accused person has been committed for trial or not' in s. 561(1) to mean whether or not that person has been committed for trial on some other offence (R v. Durnin [1945] Q.W.N. 35; Barton v. R at 113(f)); to rebut an argument that, once a person has been committed for trial for an offence, he may be indicted only for that offence. There is no reason to think that its purpose was altered by the amendment of s So construed, it does not permit the presentation of an ex officio indictment for an offence in respect of which a defendant has been committed for trial. To construe it so as to permit that result would be to permit circumvention of a safeguard which the legislature provided to a defendant to ensure a prompt prosecution or discharge. Once that is accepted, the phrase 'Subject to section 561' in s. 590 may be given a sensible meaning. It was intended to make it clear that that section does not prevent the presentation, pursuant to s. 561, of an ex officio indictment against a person for an offence other than that on which he has been committed for trial, as s. 561 envisages. Consequently we do not think that s. 561, on its proper construction, would permit the presentation of an ex officio indictment where, as in this case, the only purpose thereof would be to charge a person with an indictable offence for which he had been committed for trial and on which it was intended to put him on trial, but in respect of which an application under s. 590(2) had failed (We would not follow R. v. Harker [2002] QSC 61; S.C. No. 92 of 2002, 20 March 2002 in which a Supreme Court judge refused to stay an ex officio indictment presented in circumstances similar to those in the present case. See to the opposite effect R. v. Sylvander [1999] QDC 184; D.C. No of 1998, 23 February 1999)." [24] The observations of the Court in R v Foley do not aid the respondent's argument as to the correct resolution of the question presently under consideration. Insofar as the six counts on which the respondent had been committed are concerned, the Crown does not rely upon s 561. Those six counts charge the respondent with offences different from the six counts sought to be charged ex officio. The indictment in respect of the former six counts had been presented to the District Court on 10 December That occurred pursuant to s 560 of the Criminal Code. [25] It follows, in my opinion, that s 590 does not preclude the Crown from presenting and proceeding upon an indictment containing the counts included in the original indictment and further counts upon which the person has not been committed for trial.

9 9 [26] At this point, it must be said that the answer which I would give to the first question, and which denies the preclusive effect of s 590 of the Criminal Code, assumes the existence of authority to add the ex officio counts to the counts in respect of which an indictment had already been presented to the District Court. The extent to which that assumption is correct is not something which has been referred to the Court. The only question which bears upon that assumption which arises in these proceedings is that which arises on the second question referred to this Court. The second question [27] Section 572(1) allows for the possibility of an amendment to an indictment by way of the inclusion of any count that ought to have been included in the indictment. [28] Mr Callaghan submitted that s 572 may not be used to subvert s 590. But, as I have said, the purpose of s 590, and the consequences of non-compliance with s 590, are not as Mr Callaghan has argued. [29] Mr Callaghan argued that leave to amend the indictment was not actually sought from the trial judge so that, strictly speaking, the present question does not arise. The possibility of meeting the objection to the presentment of the indictment was, however, raised by the Crown Prosecutor; and it is fair to say that the learned trial judge made it clear that such an application would fail for the reasons covered in his ruling. His Honour's ruling was, as has been seen, based solely on a broad view of the preclusive effect of s 590. [30] Mr Callaghan also urged that this Court should not answer this question as there are grounds relating to the "merits of the case" which would lead to a refusal of leave to amend under s 572. While that view might be pressed upon the trial judge, it is not for this Court to anticipate the outcome of such an argument, especially on the limited materials before this Court and bearing in mind the narrow focus of the second question referred to this Court. [31] That question is concerned with whether s 590 precludes an amendment under s 572 to add the ex officio counts. The short answer to that narrow question is that s 590 does not, of its own force, preclude such a course. Conclusion and orders [32] For these reasons, I would answer the questions referred to this Court as follows: Question 1 - No; Question 2 - No. [33] JONES J: I agree for the reasons expressed by Jerrard and Keane JJA that both questions should be answered in the negative.