Director of Public Prosecutions v Guariglia
[2012] VSCA 105
•23 May 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0111 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| GEOFFREY GUARIGLIA | Respondent |
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| JUDGES | NETTLE and OSBORN JJA and CAVANOUGH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 May 2012 |
| DATE OF JUDGMENT | 23 May 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 105 |
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CRIMINAL LAW – Interlocutory appeal – Procedure – Whether valid for Crown to file over fresh presentment after commencement date of Criminal Procedure Act 2009 (‘CPA’) – Accused presented for trial and convicted before commencement date of CPA – On appeal, conviction set aside and new trial ordered pursuant to Crimes Act 1958, s 598(1) – New trial to be held after commencement date of CPA – CPA applicable to new trial perforce of CPA, Schedule 4, Clause 9 – Whether ss 159 and 164 of CPA applicable to new trial – Fresh presentment filed over to effect severance of counts – Whether effect of Chapter 5 of CPA to require filing over of fresh indictment instead of fresh presentment – Fresh presentment declared invalid – Observations as to whether filing over presentment commences new proceeding – R v Taylor (No 2) (2008) 18 VR 613, considered; Cornwell v The Queen (2007) 231 CLR 260, referred to – Crimes Act 1958, s 598(1); Criminal Procedure Act 2009, ss 5, 159 and 164, 216, 241, Schedule 4, Clauses 8(3), 8(3A), 8(3B), 8(3C), 8(4), 9.
STATUTORY INTERPRETATION – Purposive construction – CPA, s 164 – Whether open to read word in – Whether evident purpose of CPA, Schedule 4, Clause 9 requiring that ‘indictment previously filed’ in CPA s 164 be construed as including ‘presentment previously filed’ – Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297, applied; Thompson v Goold & Co [1910] AC 74; Wentworth Securities Ltd v Jones [1980] AC 74; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; R v Young (1999) 46 NSWLR 681, referred to – Criminal Procedure Act 2009, s 164, Schedule 4, Clause 9.
WORDS AND PHRASES – ‘Indictment previously filed’.
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mrs C M Quin with Ms R Harper | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Ms C Randazzo SC | Robert Stary Lawyers |
NETTLE JA:
This is an application for leave to bring an appeal pursuant to s 295 of the Criminal Procedure Act 2009 against an interlocutory decision of a judge of the County Court.[1] It arises from the decision of this court in Guariglia v R[2] to quash convictions of counts the subject of Presentments U00222737.3, U00394627.5 and U00394627.2 (‘the original presentments’) and order that a new trial of those counts (‘the original counts’) be had.
[1]The judge has certified pursuant to s 295(3)(b) of the Criminal Procedure Act that the interlocutory decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
[2][2010] VSCA 343.
After the matter returned to the County Court, there were a number of directions hearings. On 13 February 2012, the Crown filed two further presentments: Nos U00394627.6 and U00222737.4 (‘the additional presentments’) preferring additional charges upon which the respondent had been arraigned but which were removed from the original presentments for the purposes of his plea. On 9 March 2012, His Honour the Chief Judge granted leave to the Crown to file over Presentments U00222737.5, U00222737.6, U00222737.7;[3] U00394627.7, U00394627.8, U00222737.8, U00222737.9, U00394627.9 and U00394627.10 (‘the filed over presentments’), collectively preferring the original counts and the additional counts, and ordered that all proceedings the subject of Presentments U00222737.3, U00394627.5, U00394627.2, U00394627.6 and U00222737.4 be permanently stayed. A trial date was fixed and the matter was adjourned for a further directions hearing on 16 March 2012.
[3]The order endorsement on the backsheet states: ‘00222727.7’, but the judge said that she took that to be a typographical error.
The new trials of the original counts and the trials of the additional counts came on for hearing before the judge below. On the first day of the proceedings, counsel for the Crown announced in advance of empanelment of the jury that she considered that all of the filed over presentments were invalid and that the counts the subject of those presentments should be laid by way of indictments in accordance with the Criminal Procedure Act 2009 (‘the Criminal Procedure Act’).
She thus proposed to file over indictments in lieu of the filed over presentments and, to that end, sought declarations that the presentments numbered U00394627.6, U00394627.7, U00394627.8, U00394627.9 and U00394627.10 and U00222737.4, U00222737.5, U00222737.6, U00222737.7, U00222737.8 and U00222737.9 are invalid, orders that they be quashed and, to the extent necessary, orders vacating the orders whereby proceedings on the original presentments and the additional presentments were stayed. The judge rejected the application.
Counsel for the Crown argued below, and again before this court, that, perforce of Clause 9 of Schedule 4 to the Criminal Procedure Act, the Criminal Procedure Act applies to the new trial and, because the Criminal Procedure Act provides for charges to be laid by way of indictment rather than presentment, the Crown is required to file over indictments rather than the filed over presentments.
Clause 9 of Schedule 4 to the Criminal Procedure Act provides as follows:
9 New trial or further hearing
(1)Subject to subclause (2), on and from the commencement day, if on appeal or a case stated a new trial or further hearing is ordered, this Act applies to the new trial or further hearing, irrespective of when the first trial or hearing was conducted.
2)Subclause (1) does not apply to a new trial or further hearing that is ordered under Division 4 or 5 of Part 6.3 in a proceeding that commenced before the commencement day.
The new trial in this case was ordered under s 568(2) of the Crimes Act 1958 (and so not under Division 4 or 5 of Part 6.3 of the Criminal Procedure Act).
Section 159 of the Criminal Procedure Act (which appears in Chapter 5) provides that an indictment may be filed at any time except where otherwise provided by or under the Criminal Procedure Act or any other Act. Section 164 of the Criminal Procedure Act (which also appears in Chapter 5) provides for fresh indictments. In the Crown’s submission, the effect of Clause 9 of Schedule 4 read in conjunction with s 159 and s 164 is to empower the Director to file over a fresh indictment in the new trial.
The judge rejected the Crown’s argument. Her Honour reasoned that, because the respondent was not committed for trial under Chapter 4 of the Criminal Procedure Act, and because a direct indictment has not been filed against him, s 158 excludes the application of Chapter 5. Her Honour found support for that conclusion in the terms of s 164, in as much as they define a fresh indictment as one which includes a charge for the same offence as an offence charged in an indictment previously filed in court against the accused or a related offence. In this case, there has been no indictment previously filed in a court against the accused, as opposed to the presentments previously filed against him. The judge referred to the possibility that:
the effect of Clause [9] of Schedule 4 might be that Chapter 5, Trial on indictment, applies mutatis mutandi[s], the reference to the term ‘indictment’ is to be taken as including or meaning a reference to presentment.
Her Honour said, however, that she did not need to decide that question because the parties had not addressed her on it.
With respect, I consider that it was and is necessary for that question to be decided, and that it should be answered: yes.
Evidently, the purpose of Clause 9 of Schedule 4, as expressed in the plain and ordinary meaning of its terms, is to ensure that, where on appeal a new trial is ordered to be held after the commencement date, all of the procedural aspects of the Criminal Procedure Act should apply to the new trial. Given that Chapter 5 includes the bulk of procedural provisions dealing with trial as such, one would naturally suppose that it is intended to apply.
Admittedly, as the judge said, s 158 expressly confines the operation of Chapter 5 and thus ss 159 and 164 to the circumstances identified in s 158. But, according to the natural and ordinary meaning of its terms, Clause 9 of Schedule 4 expands the area of application of Chapter 5 to include a new trial which on appeal is ordered, and held after the commencement day, irrespective of when the first or earlier trial was conducted.
Further, as the Crown argued below and again before us on appeal, that view of the purpose of Clause 9 is strengthened by Clause 8(3), which expressly provides that sections 216 and 241 apply as if the presentment were an indictment, and the recent addition to Schedule 4 of Clauses 8(3A), (3B) and (3C) which provide for the joinder in an indictment of charges preferred under the previous law and charges laid under the Criminal Procedure Act. As the Crown put it, one can see in those clauses as in Clause 9 of Schedule 4 further reflections of an overall legislative policy of ensuring that so far as practicable the procedural aspects of trials commenced after the commencement date be governed by the Criminal Procedure Act.
The judge rejected that idea. Her Honour considered that Clauses 8(3) and (3A) to (3C) point in the opposite direction. She reasoned that inasmuch it is apparent that Parliament considered it necessary to make express provision for the circumstance identified in those clauses, but has not made similar express provision for the circumstances identified in Clause 9 of Schedule 4, it is to be inferred, in accordance with the maxim expressum facit cessare tacitum,[4] that Parliament did not intend Clause 9 of Schedule 4 to have that effect.
[4]Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7.
I do not think that to be correct. Clauses 8(3) and (3A) to (3C) deal with cases which are not the subject of Clause 9 of Schedule 4; hence the need to make specific provision for them. Clause 9 of Schedule 4 deals with the discrete subject of a new trials following appeal and so may be seen as comprehensively, albeit in more general terms, calculated to attract the operation of Chapter 5 among other provisions of the Criminal Procedure Act.
It is true that a fresh indictment, if filed over in the new trial, would not come literally within the terms of the definition of ‘fresh indictment’ in s 164. As the judge said, there has been no ‘indictment’ previously filed. But in my view the Crown is correct that the necessary implication of Clause 9 of Schedule 4 is that, in circumstances where it applies, the expression ‘indictment previously filed’ in s 164 includes a ‘presentment previously filed’. Otherwise, the time limits imposed by s 163 would apply irrationally and capriciously[5] according to the fortuitous circumstance of whether a proceeding, in which on appeal a new trial is ordered to be had, was originally instituted by presentment or indictment.
[5]Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297, 320–321 (Mason and Wilson JJ).
Admittedly, it is also true, as the judge perceived, that it is a big thing to read into legislation words which are not there.[6] This is a case, however, in which I consider that, because of the evident purpose of Clause 9 of Schedule 4, one can be satisfied that, in failing to refer in s 164 to a ‘presentment previously filed’, Parliament has simply overlooked an eventuality which must be dealt with if the purpose of Clause 9 of Schedule 4 is to be achieved; and one can state with certainty the words Parliament would have used to overcome the omission if its attention had been drawn to the defect.[7]
[6]Thompson v Goold & Co [1910] AC 409, 420; Marshall v Watson (1972) 124 CLR 640, 649.
[7]Wentworth Securities Ltd v Jones [1980] AC 74, 105–6 (Lord Diplock); Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 423 (McHugh JA); R v Young (1999) 46 NSWLR 681, 687–8 (Spigelman CJ); Pearce & Geddes, Statutory Interpretation in Australia, 7th Ed, [2.33]–[2.35].
Elsewhere in her Honour’s reasons, the judge recognised that the procedure to be followed in the new trial will be, mutatis mutandis, the procedure laid down in the Criminal Procedure Act, in effect to the exclusion of the procedure laid down in the Crimes Act 1958 and the Crimes (Criminal Trials) Act 1999. With respect, her Honour was correct to do so. Although Clause 8(4) of Schedule 4 of the Criminal Procedure Act provides for the continued application of the Crimes Act 1958 and of the Crimes (Criminal Proceedings) Act 1999, as in force immediately before the commencement date, where not otherwise excluded by applicable sections of the Criminal Procedure Act, Clause 9 of Schedule 4 does otherwise exclude them in a case like this, where on appeal a new trial is ordered to be conducted after the commencement date. If I may respectfully says so, the only error in her Honour’s analysis is in her conclusion that the provisions of ss 159 and 164 do not apply.
Apparently, a good part of the argument below was directed to whether the filing over of a fresh presentment or indictment would result in the commencement of a new proceeding. It emerges from her Honour’s reasons that the Crown contended below that it follows from the decision of this court in R v Taylor (No 2)[8] that the filing over of a presentment would commence a new proceeding and, therefore, one which must be instituted by indictment under the Criminal Procedure Act rather than presentment under the Crimes Act 1958.
[8](2008) 18 VR 613.
As I see it that is irrelevant. Whether it is a new proceeding or simply a new trial in an existing proceeding, the important point is that, where it is ordered on appeal that a new trial be conducted and it is held after the commencement date, Clause 9 of Schedule 4 is engaged and dictates that the Criminal Procedure Act apply irrespective of when the first or most recent earlier trial was held. Concentration upon whether it is or is not a new proceeding is likely to prove distracting.
In case it matters, however, I note the following. First, as the judge reasoned, it does not follow that, just because the filing over of a presentment is conceived to commence a new proceeding for some purposes, it does so for all purposes. In Taylor (No 2)[9] this court held that, for the purposes of s 607 of the Crimes Act 1958, a proceeding is commenced when a presentment is filed or filed over. As Ashley JA took care to explain, however, it all depends on the context. For other purposes, such as, for example, s 128(7) of the Evidence Act 2008, the original trial and a new trial conducted on a filed over presentment are regarded as part of the same proceeding. Thus, as the High Court said in Cornwell v The Queen:[10]
Howie J’s opinion [that a new trial following a jury’s failure to agree on a verdict is not a new proceeding] is correct for the following reasons. The first and second trials were each part of one ‘proceeding’ — the prosecution of the accused on the charge of conspiring to important 120 kg of cocaine. As Blackmore DCJ accepted, at both trials the accused was ‘charged with the same offence’ arising out of the same facts, even though the jurors were different, the trial judges were different, the courts were different, and the form of the indictments differed in relation to the parties. That prosecution was not brought to an end by reason of the jury at the first trial failing to agree on whether the accused should be acquitted or convicted. Rather, that failure simply left the prosecution uncompleted. As Howie J said, a retrial may occur for many reasons other than a jury disagreement. The jury may be discharged, for example, because of illness among the jurors, because of what is said in the addresses of counsel, because the jury hears inadmissible information in a manner not capable of being cured by direction, or because of judicial self-disqualification on grounds of actual or apprehended bias. The first trial may proceed to a conviction, but a second trial may be necessary because an appeal is allowed on some ground not resulting in a verdict of acquittal. The construction on which Blackmore DCJ’s conclusion depends produces results so unlikely as to compel its rejection. Among other difficulties, it would mean that an accused person who had obtained a ruling under s 128(2) or (5) but who considered that the evidence given to which the ruling related had turned out unsatisfactorily could, by misconduct sufficient to cause the first trial to miscarry, obtain a second trial free of the risk of that evidence being used. To conduct a retrial is to conduct the trial which ought to have taken place in the first place. A retrial returns the parties to the position they were in at the start of the first trial. The parties are at liberty to retender the evidence already tendered. They are also at liberty to tender other evidence. Among that other evidence which traditionally the parties have been at liberty to tender is evidence of admissions made at the first trial.
[9]Ibid [36] (Ashley JA).
[10]Cornwell v The Queen (2007) 231 CLR 260, 294 [88] (Gleeson CJ, Gummow, Heydon and Crennan JJ).
Secondly, as the judge remarked, where a new trial is ordered under s 568(2) of the Crimes Act 1958, as it was in this case, it ordinarily means a new trial on the presentment before the Court of Appeal. Putting aside the application of the Criminal Procedure Act, the Crown would have the right to file over a fresh presentment at any time before arraignment and, after arraignment, with leave.[11] If it were to do so, proceedings on the original presentment would be stayed[12] and the accused would need to be re-arraigned on the filed over presentment.[13] The trial of
the accused would then commence.[14] But that said, it does not necessarily follow that a new proceeding would thereby be commenced, as opposed to commencing a new trial in the same proceeding. As the judge said, the purpose of filing over the fresh presentments in this case was to give effect to severance, not to start an entirely new process.
[11]R v Harris (No 2) [1990] VR 305, 306–307 (Ormiston J).
[12]Perforce of s 4(4) of the Crimes (Criminal Trials) Act 1999, or by the court before that provision was enacted.
[13]Cf R v TSR (2002) 5 VR 627, 638 [34], following R v McNamara (No 2) [1997] 1 VR 257.
[14]Where a trial is on indictment, s 210 of the Criminal Procedure Act provides for the trial to begin upon arraignment. Similarly, where a trial is on presentment, the common law provides that the trial begins upon arraignment when the accused is put in charge of the jury: Fox, Victorian Criminal Procedure, 2005.
Thirdly, it remains that, even if the filing over of a fresh presentment is properly to be seen as the commencement of a new proceeding, there is no provision in the Criminal Procedure Act apart from Clause 9 of Schedule 4 coupled with ss 159 and 164 for the filing over of a fresh indictment where a new trial is ordered in a prosecution instituted by presentment. Section 5 provides that a criminal proceeding is to be commenced by filing an indictment in accordance with s 159. But, apart from the fact that s 159 is made applicable by Clause 9 of Schedule 4, it would be nihil ad rem.
Conclusion and orders
In the result, I conclude that, by reason of Clause 9 of Schedule 4, the Criminal Procedure Act, including Chapter 5, and thus ss 159 and 164, apply to the new trial. It follows in my view that, because the presentments which were filed over on 9 March 2012 did not comply with the requirements of s 159, they are invalid and ought be set aside. Accordingly, upon the Crown’s application, I would declare that the filed over presentments were and are invalid and that any orders staying proceedings on the original presentments and the additional presentments should be set aside. It further follows from what I have said that, if it is sought to reconstitute the original presentments and the additional presentments for the purposes of severance or other good reason, it will need to be done by way of fresh indictments in accordance with the Criminal Procedure Act.
Finally, I add that in the course of argument this morning, it was appreciated perhaps for the first time, that the counts the subject of the additional presentments filed on 14 February 2012 cannot be included in an indictment pursuant to Clause 8(3B) of Schedule 4 to the Criminal Procedure Act; for the reason that they are charges in respect of which the respondent has been committed albeit not yet tried. It follows that, if the Crown is to proceed with those additional charges, it will need to proceed with them either on the additional presentments or on a filed over presentment or presentments.
OSBORN JA:
This is an application for leave to appeal against a ruling of her Honour Judge Morrish refusing to quash as invalid a group of presentments alleging a series of offences by the respondent.
The factual background of the matter has already been outlined by the presiding judge.
The presentments fall into two groups; (a), those comprising charges which, following appeal, were remitted for a new trial before the County Court pursuant to s 568(2) of the Crimes Act 1958 and; (b), further charges which were not the subject of the appeal but which it is now intended to prosecute, together with the remitted charges. Each group comprises charges which were the subject of a committal before the commencement of the Criminal Procedure Act2009 (‘CPA’).
The Crown initially submitted that the presentments as a whole are invalid because of the provisions of Clause 9(1) of Schedule 4 of the CPA.
9 New trial or further hearing
(1) Subject to subclause (2), on and from the commencement day, if on appeal or a case stated a new trial or further hearing is ordered, this Act applies to the new trial or further hearing, irrespective of when the first trial or hearing was conducted.
As was conceded in argument this morning, insofar as the presentments relate to matters which were not the subject of an order for new trial, this submission cannot stand. Such presentments are caught neither by Clause 9 nor Clause 3A of Schedule 4 in the present case.
Insofar as those matters which have been remitted for a new trial are concerned, however, the Crown submits that if full effect is to be given to the apparent intent of Clause 9(1) then in the present circumstances it is a necessary incidental mechanism that the new trials proceed on the basis of indictments filed in accordance with Part 5.2 of the CPA.
To decide whether this is correct, it is necessary first to consider the language in Clause 9 in the context of the CPA as a whole and then to consider specifically whether Clause 9 discloses the intention for which the Crown contends.
In my view, Clause 9(1) does not in terms require the filing of further indictments in accordance with ss 150 to 166 of the CPA.
(a) the requirement for application of the CPA to a new trial is not in terms one which necessarily requires the filing of an indictment as a precursor to such trial and;
(b) it is plainly possible to read Clause 9 as not requiring the application of ss 150 to 166 contained in Part 5.2 of the CPA to the presentments in question, because the terms of those sections do not expressly catch the situation in issue.
The question nevertheless remains whether Clause 9 discloses an overarching intention that requires the incidental filing of indictments in the present circumstances.
I agree that the fundamental issue is whether Part 5 of the CPA is intended to have substantial application to trials of the type in issue.
Part 5.5 of the CPA relates to pre‑trial procedure. Part 5.6 relates to sentence indications. Part 5.7 relates to trial and Part 5.8 relates to a variety of general matters bearing on trials. These parts of the CPA may fairly be regarded as comprising the core provisions of the CPA with respect to a trial and in consequence, if they are not caught by Clause 9, its effect a materially diminished.
Most significantly, Part 5.7 is headed 'Trial' and it is that part of the CPA most directly concerned with the conduct of a trial. If it does not apply, Clause 9(1) is of substantial effect, only where a new trial is ordered under the CPA. The opening words of Clause 9(1), however, support the view that it is intended to apply generally to new trials ordered after the commencement day whether under the CPA or the Crimes Act 1958.
In turn, it would be possible to treat procedural sections contained in Parts 5.5 to 5.7 of the CPA as applicable by reading the word 'indictment' as embracing ‘presentment’ where that is the basis of a trial to which Clause 9 applies.
Ultimately, however, I am persuaded by the reasons of Nettle JA and by the reasons of Cavanough AJA, which I have had the advantage of reading in draft, that the same logic applies to Part 5.2 and, in particular, s 164 and the better course is to accept that it was intended that a fresh indictment may be filed which includes a charge for the same offence charged in a presentment previously filed in court against the accused.
In turn, it follows that the further presentments were filed when the relevant powers were comprised in ss 159 and 164 of the CPA and are consequently invalid. I agree with the orders which Justice Nettle proposes.
CAVANOUGH AJA:
The Director of Public Prosecutions applies under s 269 of the Criminal Procedure Act 2009 (‘the CPA’) for leave to appeal against a ruling of her Honour Judge Morrish given in the County Court on 18 May 2012.
The application raises a discrete and important question of statutory construction.
The question relates to the effect of certain transitional provisions of the CPA. So far as relevant, the CPA came into force on 1 January 2010. Schedule 4 contains the transitional provisions. Clause 9 thereof deals with the case of a new trial ordered on appeal or case stated. Clause 9 provides:
9 New trial or further hearing
(1)Subject to subclause (2), on and from the commencement day, if on appeal or a case stated a new trial or further hearing is ordered, this Act applies to the new trial or further hearing, irrespective of when the first trial or hearing was conducted.
(2)Subclause (1) does not apply to a new trial or further hearing that is ordered under Division 4 or 5 of Part 6.3 in a proceeding that commenced before the commencement day.
In 2008 Mr Guariglia entered guilty pleas in the County Court on five presentments alleging multiple counts of burglary, theft, armed robbery, false imprisonment and weapons offences. He was convicted accordingly. On 16 December 2010 he succeeded in an appeal to this Court against the convictions on three of the presentments, on the ground that his guilty pleas had been improperly obtained.[15] By its order this Court set aside those convictions and the sentences thereon and directed that a new trial be had of the alleged offences the subject of the three presentments.
[15][2010] VSCA 343.
It will be observed that the order of this Court was made some twelve months after the commencement of the CPA.
In due course the matter came on for several directions hearings in the County Court. The Crown wished to add certain additional charges upon which Mr Guariglia had been presented in 2007 or 2008 but which, in the light of his pleas of guilty to other charges, did not proceed at that time.
In addition, both the Crown and the defence wished to see amendments made that would lead to separate hearings on some of the charges contained in the three original presentments the subject of this Court’s order of 16 December 2010.
Initially the Crown sought to achieve these ends by ‘filing over’ new presentments. The proposals were not in substance opposed by the accused. An order giving leave to file fresh presentments was made by his Honour the Chief Judge on 9 March 2012. His Honour further ordered that the superseded presentments be permanently stayed.
In due course all of the matters were listed before her Honour Judge Morrish. Mrs Quin appeared with Ms Harper on behalf of the prosecution. Ms Randazzo SC appeared with Mr Sala on behalf of the accused.
Mrs Quin submitted to her Honour that the wrong procedure had been adopted at the directions hearings insofar as fresh presentments rather than fresh indictments had been filed in respect of those counts that had been the subject of the order of this Court for a new trial. Ms Randazzo did not dispute Mrs Quin’s submission. However, after hearing argument, Judge Morrish took a different view. Her Honour ruled that the provisions of the CPA relating to the filing of indictments did not apply in this case. That is to say, her Honour considered that the procedure adopted at the prior directions hearings was correct.
On the other hand, Judge Morrish stated that the ‘trial procedure’ was governed by Clause 9 of Schedule 4 of the CPA ‘with necessary modification where applicable’.
In the course of her reasons, Judge Morrish said that the effect of Clause 9 of Schedule 4 ‘might be’ that Chapter 5 (Trial on Indictment) of the CPA applies mutatis mutandis in relation to the filing of indictments (instead of presentments) in re-trials. However her Honour said that she need not decide that question because, despite her having raised it, the parties had not addressed her on it.
However that may be, it seems to me that the argument which Judge Morrish there identified but did not deal with is in fact the key to this matter. Holding that view, I do not find it necessary to deal with certain other arguments that were identified but rejected by her Honour Judge Morrish in her reasons.
At this point I should refer further to the terms of the CPA.
The purposes of the CPA are set out in s 1. The first stated purpose is – ‘to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates’ Court, the County Court and the Supreme Court’. The CPA is divided into ten chapters, namely:
•Chapter 1 – Preliminary.
•Chapter 2 – Commencing a Criminal Proceeding.
•Chapter 3 – Summary Procedure.
•Chapter 4 – Committal Proceeding.
•Chapter 5 – Trial on Indictment.
•Chapter 6 – Appeals and Cases Stated.
•Chapter 7 – Reference to Court of Appeal on Petition for Mercy.
•Chapter 7A – Limitations on Rules relating to Double Jeopardy.
•Chapter 8 – General.
•[Chapter 9 has been repealed].
•Chapter 10 – Savings and Transitional Provisions.
Within Chapter 5 there are eight parts, as follows:
•Part 5.1 – Introduction.
•Part 5.2 – Indictment and Place of Trial.
•Part 5.3 – Notifying Accused of Indictment.
•Part 5.4 – Discontinuing a Prosecution.
•Part 5.5 – Pre-trial Procedure.
•Part 5.6 – Sentence Indication.
•Part 5.7 – Trial.
•Part 5.8 – General.
Judge Morrish made reference to s 158 of the CPA which is the only provision in Part 5.1 – Introduction. It provides:
158 Application of Chapter
This Chapter applies if—
(a) an accused is committed for trial under Chapter 4; or
(b) a direct indictment is filed against an accused.
Judge Morrish observed that neither subparagraph (a) nor subparagraph (b) of s 158 was satisfied. She observed that Mr Guariglia had not been committed for trial ‘under Chapter 4’ but rather under the previous corresponding legislative provisions. And she further observed that a ‘direct indictment’ (as defined in s 3 of the CPA) had not been filed against the accused. I will return to these observations shortly.
Section 159 of the CPA provides 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
1 Section 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.
Section 161 of the CPA reads:
161 Direct indictment commences criminal proceeding
The filing of a direct indictment commences a criminal proceeding.
Notes
1 See the definition of direct indictment in section 3. This includes an indictment filed after the Magistrates' Court declines to commit an accused for trial in respect of the offence charged in the indictment or a related offence.
2 A criminal proceeding may also be commenced—
(a) in accordance with section 6; or
(b)by a direction under section 415 that a person be tried for perjury.
Section 162 of the CPA should also be noted. It provides:
162Filing of any other indictment does not commence criminal proceeding
The filing of an indictment other than a direct indictment does not commence a new criminal proceeding against the accused.
Section 163 of the CPA imposes time limits for the filing of certain indictments.
Section 164 of the CPA provides:
164 Filing of fresh indictment
(1) In this section—
fresh indictment means an indictment which includes a charge for the same offence as an offence charged in an indictment previously filed in court against that accused or a related offence.
(2) Nothing in section 163 prevents the filing of a fresh indictment.
(3) The filing of a fresh indictment does not commence a new criminal proceeding.
(4) On the filing of a fresh indictment against an accused, proceedings in relation to a charge for the same offence or a related offence in an indictment previously filed in court against that accused are discontinued.
Note
See the definition of related offences in section 3.
Section 165 deals with orders for the amendment of indictments and s 166 deals with errors in indictments.
Judge Morrish seemed to consider that ss 158 and 164 of the CPA, in particular, stood in the way of Mrs Quin’s proposal to replace the existing presentments with indictments. However, with respect, I cannot see how s 158 might not prevent all of the provisions of Chapter 5 applying to a new trial and yet stand in the way of the proposed filing of the new indictments. Surely it is a case of all or nothing. If Clause 9 of Schedule 4 makes any provision of Chapter 5 applicable to a new trial, it makes applicable to a new trial every provision of Chapter 5 that is capable of applying appropriately to a new trial, despite s 158.
In order to ensure that the obvious intention of legislation is given effect, the courts may read into a statutory text an expression such as ‘where necessary or appropriate’ or mutatis mutandis.[16]
[16]Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 319, 322.
Here, it seems to me that s 158 should be read as including, in those cases covered by Clause 9 of Schedule 4, an accused who has been committed for trial under the previous provisions corresponding to Chapter 4.
Similarly, it seems to me that one may properly read s 159 of the Act as authorising the DPP or a Crown Prosecutor to file an indictment in such a case. It is not necessary to decide whether the DPP or the Crown Prosecutor must file an indictment (instead of the existing presentment) in every such case. It is enough to hold that an indictment may be filed. Such an indictment would, of course, not be a direct indictment. Hence it would not commence the relevant criminal proceeding.[17]
[17]Ss 161 and 162.
Nor do I see any difficulty arising from the provisions of ss 163 and 164. Section 164 is intended to make clear that the time limits specified in s 163 do not prevent the filing of a ‘fresh indictment’ as defined in s 164(1). For this purpose, it seems to me that, applying the approach to statutory interpretation to which I have referred, the definition of ‘fresh indictment’ can be read, in the case of a new trial, as extending to an indictment which includes a charge for the same offence as an offence charged in an indictment or presentment previously filed in court against that accused or a related offence.
Finally I see nothing in Clause 8 of Schedule 4 that stands in the way of the interpretation I favour. Clause 8 of Schedule 4 makes certain relatively detailed provisions in respect of existing trials. It says nothing, either expressly or impliedly, about the quite different situation which obtains where a new trial or further hearing is ordered, being the situation dealt with discretely by Clause 9 of Schedule 4.
It seems to me that the plain intent of Clause 9 of Schedule 4 is to apply the new regime of the CPA, as appropriate, to a new trial or further hearing that has been ordered. That accords with the purpose of the Act to ‘clarify, simplify and consolidate the laws relating to criminal procedure’. To hold that the power to file an indictment is not picked up would not be in accord with the apparent intention of Clause 9. To so hold would presumably render unavailable the salutary powers for amendment contained in s 165 of the Act and the protective provisions of s 166 relating to errors. Examples could be multiplied.
I agree with the orders which the presiding judge proposes.
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