Director of Public Prosecutions v County Court

[2018] VSC 447

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 02207

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
CLINTON RICHARD PHILLIPS	First Defendant
THE COUNTY COURT OF VICTORIA	Second Defendant

S CI 2018 02461

DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
TIMOTHY CAKEBREAD	First Defendant
THE COUNTY COURT OF VICTORIA	Second Defendant

---

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 August 2018
CASE MAY BE CITED AS:	DPP v County Court
MEDIUM NEUTRAL CITATION:	[2018] VSC 447

---

CRIMINAL LAW — Indictments — Validity of indictments — Signature of indictments by Crown Prosecutor — Crown Prosecutor ceasing to hold office prior to filing of indictments — Criminal Procedure Act 2009 s 159, 165, 166 and County Court (Criminal Procedure) Rules 2009 r 2.02.

JUDICIAL REVIEW — Indictments — Consequences of invalid indictments — Consent orders sought — Appropriate judicial review remedies.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	John Cain, Solicitor for Public Prosecutions
For the Defendant Clinton Richard Phillips	Melinda Walker
For the Defendant Timothy Cakebread	Emma Turnbull Lawyers

HIS HONOUR:

1. These two judicial review proceedings commenced by the Director of Public Prosecutions arise from indictments signed by a Crown Prosecutor who, by the time the indictments were filed, had ceased to be a Crown Prosecutor.

1. The parties in both proceedings have filed consent orders and joint memoranda explaining the legal justification for their proposed orders in accordance with the requirements of clause 8.1 of the Judicial Review and Appeals List Practice Note.  The court is obliged to determine for itself whether the consent orders sought are justified and appropriate.

1. On 5 April 2018, pursuant to the filing of an indictment on that day, Mr Phillips was arraigned on and pleaded guilty to four indictable offences and an uplifted related summary offence.  On 12 April 2018, Mr Phillips was sentenced to 3 years and 6 months of imprisonment.

1. On 24 April 2018, pursuant to the filing of an indictment on that day, Mr Cakebread was arraigned on and pleaded guilty to three indictable offences together with four uplifted related summary offences. On 1 May 2018, Mr Cakebread was sentenced to 484 days of imprisonment.

1. The joint memoranda filed by the parties recites the following facts. Upon review, it was discovered that the plea indictment filed in the case of Mr Phillips, and in the case of Mr Cakebread, had been signed by a Crown Prosecutor, who by the time the indictment was filed, had ceased to be a Crown Prosecutor. The parties agreed that the indictments to which Mr Phillips and Mr Cakebread purported to plead guilty were invalid. The parties agreed that there are no provisions in the Sentencing Act 1991, Criminal Procedure Act 2009, or any other Act that provides for the rectification of the errors. Pursuant to the decision in DPP v Edwards,[1] the County Court is now functus officio, and has no power to declare that the original sentencing orders are invalid.  The only way for the defective sentencing order to be corrected is by way of judicial review to the Supreme Court. The parties agree that the Supreme Court should now declare the indictments to be invalid, should set aside the convictions and the sentences and remit each proceeding to the County Court for rehearing by the respective sentencing judges, with the plaintiff paying the first defendant’s costs in each proceeding.

   [1](2012) 44 VR 114.

1. There was nothing to alert the sentencing judges to the defect in each of the indictments.

1. As stated, this court must decide if the orders sought by consent should be made. The question in these proceedings is whether the signature of a former Crown Prosecutor on an indictment filed in court is sufficient to satisfy the validity requirements in s 159 of the Criminal Procedure Act 2009 (‘the Act’).

Statutory Scheme

1. The relevant provisions of the Criminal Procedure Act 2009 are as follows:

159     DPP or Crown Prosecutor may file an indictment

(1)Subject to the Public Prosecutions Act 1994, the DPP or a Crown Prosecutor in the name of the DPP may file an indictment.

(2)An indictment may be filed at any time, except where otherwise provided by or under this or any other Act.

Note

Section 163 provides time limits for the filing of certain indictments.

(3)       An indictment must—

(a)      be in writing; and

(b)be signed by the DPP or a Crown Prosecutor in the name of the DPP; and

(c)      comply with Schedule 1.

Notes

1Section 253 abolishes the common law procedure of calling a grand jury.

2Section 172 permits the DPP to nominate an address for service of documents. That information may be included on an indictment.

165     Order for amendment of indictment

(1)The court at any time may order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.

(2)If an indictment is amended by order under this section, the indictment is to be treated as having been filed in the amended form for the purposes of the trial and all proceedings connected with the trial.

166     Errors etc in indictment

(1)An indictment is not invalid by reason only of a failure to comply with Schedule 1.

(2)       A charge on an indictment is not invalid by reason only of—

(a)omitting to state the time at which the offence was committed unless time is an essential element of the offence; or

(b)incorrectly stating the time at which the offence was committed; or

(c)stating the offence to have been committed on an impossible day or on a day that never happened.

1. The County Court (Criminal Procedure) Rules 2009 also govern the filing of indictments:

2.02     Filing an indictment

For the purpose of section 159(1) of the Act, an indictment is filed when it is provided to a Judge in open court.

1. Section 104B of the Sentencing Act 1991 is also relevant and states:

104BCourt may reopen proceeding to correct penalties imposed contrary to law

(1)This section applies to a criminal proceeding (including an appeal) in which a court has—

(a)       imposed a penalty that is contrary to law; or

(b)failed to impose a penalty that is required to be imposed by law.

(2)The court may, at any time, reopen the proceeding on its own motion or on application by a party and, after giving the parties an opportunity to be heard—

(a)may impose a penalty that is in accordance with the law; and

(b)       if necessary, may amend any conviction or order.

(3)In determining whether to reopen a proceeding under this section, the court must have regard to the time that has elapsed since the imposition of, or failure to impose, the original penalty.

(4)In determining a new penalty on a reopening of a proceeding in which a court has imposed a penalty, the court must take into account the extent to which the person to whom the proceeding relates has served, paid, complied with or otherwise suffered the consequences of the original penalty.

(5)For the purposes of this section, the court may require the attendance of the person to whom the proceeding relates and, if the person fails to attend, may issue a warrant to arrest the person if the court is satisfied that the person has had reasonable notice of the requirement to attend.

(6)For the purposes of this section, a penalty is not contrary to law only because the decision to impose it was reached by a process of erroneous reasoning or factual error.

(7)       In this section—

attend, in relation to a person, means—

(a)       be physically present in court; or

(b)if authorised or required to do so under Division 3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958, appear or be brought before the court by audio visual link;

impose a penalty includes—

(a)       impose a sentence of imprisonment or a fine; and

(b)       make any of the following orders under this Act—

(i)an order under section 11 fixing a non-parole period;

(ii)       a Court Secure Treatment Order;

(iii)      a drug treatment order;

(iv)     a residential treatment order;

(v)      a youth justice centre order;

(vi)     a youth residential centre order; and

(c)make a community correction order or attach a condition to a community correction order; and

(d)      adjourn a proceeding under section 72 or 75; and

(e)make a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and

(f)make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss, suspension or variation of a licence or privilege.

Did the indictments comply with s 159?

1. An indictment is a formal document tendered in court by the prosecution setting out the charges against an accused person. The filing of an indictment is the formal process which enlivens the jurisdiction of the court over the accused person and commences the proceedings in the court.[2] Section 159 of the Act governs the filing of indictments and sets out the requirements with which they must comply. Pursuant to s 159(3)(b), the indictment must be signed by the DPP or a Crown Prosecutor in the name of the DPP.

   [2]R v McNamara (No 2) [1997] 1 VR 257; R v Parker [1977] VR 22.

1. The language of s 159 refers to the ‘filing’ of an indictment, therefore that is the time at which its compliance with the criteria must be determined. The time of filing is when the indictment is handed to a judge in open court.[3] Accordingly, when handed to a judge in open court, the indictment must bear the signature of the DPP or a current Crown Prosecutor. It is an uncontested fact that this did not occur in either proceeding. The indictments in question therefore did not comply with the requirement of s 159(3)(b).

   [3]County Court (Criminal Procedure) Rules 2009 r 2.02.

Consequence of non-compliance with s 159(3)(b)

1. The next question is whether the defect in question renders the indictments invalid, or is a mere irregularity that does not have that effect.  A similar issue in respect of presentments was determined by the Full Court of the Supreme Court of Victoria in R v Parker.[4]  In that case, an accused person was arraigned upon a presentment[5] signed by a prosecutor. On the day in which the presentment was filed in court, the prosecutor who had signed the presentment commenced holding office as an acting County Court Judge. After a trial, the accused person was convicted and sentenced to a term of imprisonment. The conviction and sentence were quashed on appeal on the ground that the presentment was invalid and thus that the trial was a nullity. The court held that, at the time of filing, the prosecutor who signed the presentment was ‘disqualified from exercising the powers of a prosecutor’.[6] Young CJ stated that:

Since there was no valid presentment before the County Court, that Court had no jurisdiction to arraign or try the applicant for any indictable offence… The trial was a nullity and the conviction and sentence must accordingly be quashed.[7]

[4][1977] VR 22.

[5]At the time R v Parker was decided, the procedure for the hearing of indictable offences was commenced by ‘presentment’ rather than by indictment. Section 353 of the Crimes Act 1958 relevantly set out the criteria for the validity of presentments. For the purpose of this decision, the regime governing presentments was sufficiently similar to that governing indictments, see, eg, DPP v Guariglia [2012] VSCA 105 and sch 4 of the Criminal Procedure Act 2009.

[6]R v Parker [1977] VR 22, 24 (Young CJ).

[7]Ibid 29 (Young CJ).

1. The decision in R v Parker establishes that an improperly authorised indictment is invalid, and that the consequence of this invalidity is that any subsequent trial or plea is a nullity, and that any conviction and sentence must be quashed.

1. Decisions of the New South Wales Court of Criminal Appeal have reached a similar conclusion in R v Janceski,[8] R v Halmi,[9] and R v Swansson; R v Henry.[10] In the latter case, Simpson J explained that:

…the indictment is the originating process that invests the court with jurisdiction. If the indictment is invalid, the court does not have jurisdiction to hear the charge or charges, and proceed to verdict; the proceedings on the invalid indictment are irregular, and cannot be regularised. They are a nullity.[11]

[8](2005) 64 NSWLR 10.

[9](2005) 62 NSWLR 263.

[10](2007) 69 NSWLR 406.

[11]Ibid 432.

1. It is also necessary to consider other provisions of Part 5.2 of the Act. Section 166 sets out those errors in indictments that will not lead to invalidity. The lack of a signature of a person who at the time of filing was a Crown Prosecutor is not included in that section. As the filing of a valid indictment is the very act which confers jurisdiction upon the court, a failure to do so renders the proceedings a nullity. Any subsequent conviction and sentence founded upon an invalid indictment must therefore be quashed.[12]

   [12]R v Parker [1977] VR 22, 29 (Young CJ); Crane v DPP [1921] 2 AC 299, 321 (Lord Atkinson), 331 (Lord Sumner) and 337 (Lord Parmoor).

1. In addition to the indictable offences, both Mr Phillips and Mr Cakebread were convicted on related ‘uplifted’ summary offences. Under s 145 of the Act, summary offences that are ‘related’[13] to a charge of an indictable offence must be transferred (ie. ‘uplifted’) from the Magistrates’ Court to the court hearing the charge of that indictable offence. Section 242 of the Act confers summary jurisdiction upon the court to which those summary offences are transferred. It is clear that the summary offences are inextricably attached to the indictment, as without such indictment the court would not have jurisdiction to hear them. Therefore, the invalidity of the indictments must cause the convictions on the uplifted summary offences to also be quashed.

   [13]A ‘related’ offence is defined under s 3 of the Act to mean offences founded on the same ‘facts or form’ or offences that are part of the same ‘series of offences’.

The indictments could not be rectified

1. The invalidity in the indictments could not have been remedied pursuant to any power contained in the Criminal Procedure Act 2009 or the Sentencing Act 1991.

1. Section 165 of the Act allows a court to amend an indictment at any time and in any manner the court sees fit, unless it would cause injustice to the accused. However, this power to amend cannot be exercised to cure an invalidly authorised indictment. The power of amendment operates to remedy errors in content, such as the charge or those facts giving rise to the charge. Examples of its use include amending the date range on which offending was alleged to have occurred,[14] amending an incorrect identification of a victim of an offence,[15] and amending the charge to accurately reflect the conduct of the accused.[16]  But it is clear that such power to amend is not capable of remedying the defect in the indictments for these proceedings.

   [14]DPP v Jarvis (a Pseudonym) [2018] VSCA 173.

   [15]Sutton(a Pseudonym) v The Queen [2015] VSCA 251.

   [16]Eade v The Queen; Vanstone v The Queen [2012] VSCA 142.

1. Section 104B of the Sentencing Act 1991 allows a court to reopen proceedings to correct penalties imposed ‘contrary to law’.  It was inserted into the Sentencing Act 1991 by s 7 of the Sentencing Amendment (Correction of Sentencing Error) Act 2015. The purpose of the amending Act was to ‘provide further for the correction of sentencing errors’.[17] Further, the Explanatory Memorandum for the amending Act explains that s 104B was inserted into the Sentencing Act 1991 to better address errors in sentencing,[18] such as that which was the subject of the Court of Appeal’s decision in DPP v Edwards,[19] where the sentencing judge had imposed a sentence no longer available and sought to vacate it and impose an alternative sentence that was available. It was held on appeal that the first sentence was invalid, but that the judge was functus officio after entering the first sentence into the records of the court. The second sentence was therefore also invalid.

   [17]Sentencing Amendment (Correction of Sentencing Error) Act 2015 (Vic) s 1.

   [18]Explanatory Memorandum, Sentencing Amendment (Correction of Sentencing Error) Bill 2015, 2-4.

   [19]DPP v Edwards (2012) 44 VR 114.

1. In these proceedings, the errors in question were not sentencing errors but were contained in the indictments upon which the conviction and subsequent sentence were based. In addition to this, the parties submit in their joint memoranda that the sentences in question were not penalties imposed ‘contrary to law’. The parties rely upon the High Court authority of Achurch v The Queen.[20] It is unnecessary to decide this point, as s 104B is clearly not directed towards remedying defects in an indictment and subsequent conviction. It is instead directed towards sentences contrary to law that are nonetheless based on valid convictions, such as in Edwards.

   [20](2014) 253 CLR 141.

Conclusion

1. The indictments in both proceedings failed to meet the s 159(3)(b) criterion. In light of DPP v Parker and other authorities, such a failure renders the indictments invalid. As the filing of a valid indictment is the act which confers jurisdiction upon a court to hear and determine a charge on an indictable offence, an invalid indictment infects any subsequent proceeding, conviction and sentence. Therefore, the orders sought by consent should be made in both proceedings and steps taken to ensure that invalidity in an indictment arising from a Crown Prosecutor ceasing to hold office does not recur.

1. I will issue a declaration that the indictments are invalid, and the convictions and sentences imposed in both proceedings must be set aside. The charges in each proceeding must be remitted to the County Court for determination by the respective sentencing judge. In each proceeding, the plaintiff must pay the first defendant’s costs of the proceeding.