APPLICATION for RESERVATION of QUESTION of LAW No. SCCRM-97-222 Judgment No. S6420

[1997] SASC 6420

APPLICATION BY THE DIRECTOR OF PUBLIC PROSECUTIONS FOR THE RESERVATION OF A QUESTION OF LAW

PURSUANT TO SECTION 350(2)(a) OF THE
CRIMINAL LAW CONSOLIDATION ACT

Court of Criminal Appeal:  Doyle CJ, Matheson and Duggan JJ

DOYLE CJ

Background

In 1995 Parliament enacted provisions making a number of changes to the provisions of the Criminal Law Consolidation Act ("CLCA") dealing with the reservation of questions of law in criminal cases and with the right of appeal in criminal cases.

In particular, a new section 350 was enacted. The new section 350 provides that a question of law may be reserved for consideration by the Full Court before the trial court proceeds to conviction or acquittal. Under section 350 as it previously stood, a case could be stated, reserving a question for the consideration of the Full Court, only after conviction or acquittal: R v Parry (1980) 23 SASR 187.

When it enacted these amendments, Parliament also enacted a transitional provision.  The transitional provision is as follows:

"       11. (1)  If an information was laid in the Supreme Court or the District Court before the commencement of this Act, the amendments effected by this Act do not apply to the proceedings founded on that information or any related proceedings and the provisions of the principal Act affected by the amendments continue to apply as if the amendments had not been made.

(2)  If an information is laid in the Supreme Court or the District Court on or after the commencement of this Act, the amendments effected by this Act apply to the proceedings founded on the information and any related proceedings."

The Director of Public Prosecutions ("DPP") has made application to the Full Court, under section 350(2) of the CLCA, for an order requiring a Judge of this Court to reserve certain questions of law for consideration of the Full Court. That Judge has begun the trial of the respondents to the application, upon an information filed in this Court. The respondents challenge the jurisdiction or power of the Full Court to require the trial Judge to reserve questions of law for the Full Court’s consideration. They argue that, by virtue of the transitional provision, the new section 350 of the CLCA is not applicable. As I understand the position, the DPP concedes that if the new section 350 is not applicable the Full Court lacks the power to require the trial Judge to reserve questions of law.

The Act that amended the CLCA came into force on 4 January 1996.

The respondents were arraigned in the District Court on an information dated 30 October 1995.  That information was laid before the commencement of the amending Act.  The proceedings were transferred to the Supreme Court, and in December 1995 a fresh information was filed, but dated "October 1995 Sessions".  I assume that that information is to be treated as laid in December 1995.  Accordingly, it also was laid before the commencement of the amending Act.  Later, a doubt arose about the authority of the person who signed that information to do so.  On 18 March 1996 a further information was filed, which was described as an ex officio information.  It was in the same terms as the previous information.  That information was signed by the DPP.  It was common ground that there was no change of any significance in the matters charged by that information.

A Judge of this Court began to hear an application on the voire dire, for the exclusion of prosecution evidence, on 1 April 1997.  That was an application made in proceedings on the information filed on 18 March 1996.  We were told that on 16 April counsel for the DPP opened the case for the purposes of the voire dire and for the purposes of the trial.  I should add, that the case proceeded as a trial before judge alone.  On 18 April a witness gave evidence on the basis that that evidence was received on the voire dire and on the trial.  On 21 May 1997 the trial Judge made a ruling on the voire dire.  The trial Judge decided to exclude certain evidence tendered by the Crown.  The trial Judge did so exercising a discretion which arose because of a finding by the trial Judge that there had been improper or unlawful conduct on the part of the police.  It is that ruling that gives rise to the questions of law that the DPP wishes to have reserved for the consideration of the Full Court.

On 1 July 1997 application was made by the DPP to the trial Judge for an order reserving the questions of law for consideration by the Full Court.  Having heard argument on the matter, the trial Judge refused to do so.

On 26 August 1997 a summons was issued by the DPP, seeking an order that questions of law be reserved for the consideration of the Full Court. That order was sought from the Full Court. By section 350(2)(a) of the CLCA, the Full Court can require questions of law to be reserved for its consideration. The accused at the trial are the respondents to the summons.

Meantime, the trial has not proceeded any further. 

This Court has heard argument on the question of its power to require the trial Judge to reserve questions of law for its consideration.  At the request of the DPP we did not hear submissions on the question of whether the Court should in fact require the questions of law to be reserved, or on the terms of those questions.  The Solicitor-General, appearing for the DPP, submitted that there were facts not presently before the Court upon which he wished to rely in relation to the exercise of the discretion.

Transitional Provision

The submission by the respondents is that the proceedings before the trial Judge, although a trial on the information of 18 March 1996, are proceedings "founded on" one or other of the informations laid in 1995.  Alternatively, it was submitted that the proceedings are "related proceedings", that is that they are related to one or other of the informations filed before commencement of the amending legislation.  If either submission is correct, the power to require the trial Judge to reserve questions of law at this stage of proceedings does not arise.

The submission put by counsel for the respondents was simply expressed.  An information was laid before the commencement of the amending Act.  The information upon which the respondents were being tried contained charges that were, in substance, no different from the charges contained in the earlier informations.  It was submitted that as a matter of practicality or reality, the proceedings on the information of 18 March 1996 are founded on one or other of the earlier informations, because the later information, as a matter of substance, charges the same matters as the earlier informations.

I do not accept that submission.

In my opinion the proceedings before the trial Judge were founded on (in the sense of based on or grounded on) the information upon which the accused were being tried.  The trial was a proceeding on the information of 18 March 1996.  It was founded on that information.  For present purposes, the earlier informations are of no legal significance.  No proceeding was taking place upon those informations.  If the information of 18 March 1996 could be said to be founded on anything, it is founded on the order committing the respondents for trial or upon the facts the subject of the charges to be found in the information.  In my opinion the information of 18 March 1996 is not in any sense, legally or factually, founded upon either of the earlier informations.  Neither the validity nor the effect of the later information depends in any way upon the earlier informations.  The fact that the same matters are charged in all informations does not affect that conclusion.

I acknowledge that the use of the expression "founded on" is a little odd.  Parliament could have referred simply to "proceedings on that information".  The expression "founded on" might have been added to catch amendments made after the commencement of the amending Act, or perhaps to catch alternative counts unstated in the information, or perhaps to catch matters such as cases stated and appeals arising out of an information.  Whatever the reason may be, I do not consider that Parliament intended or envisaged an enquiry into the history of an information, with a view to ascertaining whether the matters charged in an information bore such a relationship to an earlier information that the later information could be said to be founded upon the earlier one.  However, that is only a secondary reason for my conclusion.  My primary reason rests upon what I consider to be the ordinary meaning of the words "founded on".  I consider that those words import the notion of one thing depending on or relying upon another thing, and not simply a coincidence or similarity of subject matter.

I accept that the end result is somewhat curious.  It means that the accident, as in this case, of a fresh information means that the amendments apply when they otherwise would not have applied.  That consideration does not cause me to reject what I consider to be the natural meaning of the words used.

Nor do I accept that the proceedings before the trial Judge were, for the purposes of the transitional provision, "related proceedings".  My reasons are similar.  I do not consider that the proceedings on the later information are related to the earlier informations.  Those proceedings have nothing to do with those earlier informations.  In my opinion, the fact that the subject matter of all informations may be the same, or substantially the same, does not mean that the proceedings on the later information are related to the earlier informations.

I conclude that the information upon which the trial proceeded before the trial Judge falls within subsection (2) of the transitional provision, and does not fall within subsection (1). 

Leave to Appeal

The second submission was that the decision to exclude certain evidence tendered by the prosecution, which decision in turn gave rise to the application for the reservation of a question of law, was an interlocutory judgment or order. In a sense that is right, although these are terms usually applied in civil matters, not in criminal matters. Building on that foundation, it was argued that the DPP required leave to appeal under section 50(3) of the Supreme Court Act. That provision provides that no appeal lies, without leave, from an "interlocutory order or interlocutory judgment" except in certain specified cases.

I do not accept that submission. The proceeding now before the Full Court is an application by the DPP for an order reserving for consideration by the Full Court certain questions of law. That application is made under section 350(2) of the CLCA. The proceedings are not an appeal under section 50 of the Supreme Court Act. If the Court finds that it has jurisdiction to require the trial Judge to reserve questions for its consideration, and makes an order to that effect, a case will be stated by the trial Judge under section 351 of the CLCA, and the Court will then consider the questions of law under section 351A of the CLCA. Although the proceedings will bear some similarity to an appeal, they will not, in my opinion, even then be an appeal for the purposes of section 50 of the Supreme Court Act. They would simply be proceedings under the relevant provisions of the CLCA.

In short, in my opinion the Court is not now hearing, nor will it at a later stage be hearing, an appeal for the purposes of section 50 of the Supreme Court Act. Accordingly, the question of leave to appeal under section 50(3) does not arise.

In my opinion, the applicability of section 50 of the Supreme Court Act to criminal proceedings does not have to be considered. The present proceedings are, clearly enough, proceedings under the relevant provisions of the CLCA: see Skewes v Veenhuizen (1978) 20 SASR 109 and The Queen v Millhouse (1980) 24 SASR 555.

A subsidiary submission was advanced based on section 27 of the Acts Interpretation Act. Section 27(3) provides that if no time is prescribed within which something must be done, "... the thing must be done with all convenient speed ...". Even if the DPP has not acted with all convenient speed, in my opinion that does not deprive the Court of jurisdiction to make an order. Failure to act with all convenient speed is relevant to the exercise of the Court’s discretion, but not a matter that deprives the Court of the power to exercise the discretion.

Reserving a Question

A third submission was that if a question is to be reserved, it can be reserved only, as I understood the submission, at the instance of a party who makes application for a question to be reserved before that question is argued and decided.  I gather that DPP did not ask the trial Judge to consider reserving the relevant questions of law before the ruling was made at the trial. 

I accept the practical merit of the course suggested. However, I can find no basis for limiting section 350 to questions the reservation of which has been raised with the trial Judge, or the Full Court, before the question is argued and decided.

First of all, section 350 deals also with questions reserved on application by the Attorney-General or the DPP after an acquittal. In such a case the trial Judge must reserve a question if application is made. So far as I am aware, it has not been the practice of the Court to reserve a question in those situations only if, during the trial and before the question was decided, the matter was raised with the trial Judge.

Another consideration of practice is the fact that a trial Judge may reserve a question of his or her own motion.   In such a case there might not be a request by either party at any stage.

Finally, there is the question of where in section 350 one finds the words that suggest that a question of law may be reserved only if a request or proposal that that course be followed is made before the question is argued and decided. I can find nothing in section 350 which suggests that that procedure must be followed. Nor do I consider that the use of the word "reserve" suggests that that is a course of action that must be followed. Nor do I accept that the practical arguments in favour of a reservation being raised with the Judge, before the question is considered are so compelling as to lead to the conclusion that it must have been intended that this had to be done before the question could be reserved.

For those reasons I do not accept the third submission.

Conclusions

In my opinion this Court has power to require the trial Judge to reserve questions of law relevant to the trial of the respondents.  Whether the Court should do so, and the terms in which it should do so, are matters yet to be decided.

I would therefore dismiss what was, in substance, an objection to the jurisdiction of the Court and, subject to such procedural directions as may seem appropriate, direct that the matter be listed as soon as convenient for further hearing before the Full Court which, for those purposes, in my opinion may be differently constituted.  The trial has not advanced since 21 May 1997, and it is desirable that the further delay be kept to a minimum.

MATHESON J

I would dismiss the objection to the jurisdiction of the court for the reasons given by Doyle CJ.

DUGGAN J

I agree with the Chief Justice’s conclusion that the amendments effected by the legislation which came into force on 4th January 1996 apply to the proceedings before Nyland J and that they authorise this court to require her Honour to reserve a question of law in these proceedings.

In addition to the considerations referred to by the Chief Justice I think it is also of significance that the final information filed by the Director of Public Prosecutions was an ex officio indictment. This procedure is exceptional in the sense that it can be used to avoid the usual course of a preliminary examination. (Barton v The Queen (1980) 147 CLR 75 at 87). However it is a device which is often used to cure defects in previous proceedings or to lay a charge different from that on which the accused was committed for trial. (R v Maitland [1953] SASR 328; R v O’Neill (1989) 53 SASR 1). The decision to lay an ex officio information is not reviewable but the court may stay the proceedings to prevent an abuse of process. (Barton v The Queen supra at 95; Ex parte Christianos v DPP (1992) 9 WAR 345).

The important consideration for present purposes which arises out of the nature of the proceedings upon ex officio indictment is that the information is independent of any previous proceedings.   In other words it stands on its own feet and carries its own authority.  That being so I am of the view that the proceedings before Nyland J were founded solely on the ex officio information.  Furthermore they were not "related" in any relevant sense to the informations which were filed previously.   The previous informations were part of the history of the matter, but the legal effect of the ex officio information was to initiate fresh proceedings.