Director of Public Prosecutions v Roote
[2018] VSC 496
•31 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 02486
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| KELLY ROOTE | First Defendant |
| THE COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 31 August 2018 |
CASE MAY BE CITED AS: | DPP v Roote |
MEDIUM NEUTRAL CITATION: | [2018] VSC 496 |
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CRIMINAL LAW — Indictment — Validity of indictment — Signature of indictment by Crown Prosecutor — Crown Prosecutor ceasing to hold office prior to filing of indictment — Criminal Procedure Act 2009 s 159.
JUDICIAL REVIEW — Indictment — Consequences of invalid indictment — Consent orders sought — Appropriate judicial review remedies.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | John Cain, Solicitor for Public Prosecutions | |
| For the First Defendant | Self-represented |
HIS HONOUR:
This judicial review proceeding commenced by the Director of Public Prosecutions arises from the signing of an indictment by a Crown Prosecutor who, by the time the indictment was filed, had ceased to be a Crown Prosecutor.
The parties have filed consent orders and a joint memorandum 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.
On 1 May 2018, pursuant to the filing of an indictment on that day, Mr Roote was arraigned on and pleaded guilty to one indictable offence. He was convicted and placed on a community correction order for three years. Upon review it was discovered that the plea indictment filed in the case had been signed by a Crown Prosecutor who, by the time the indictment was filed, had ceased to be a Crown Prosecutor. The parties agree that the indictment to which Mr Roote purported to plead guilty was invalid.
Near identical facts were considered in DPP v County Court.[1] In that case it was discovered that plea indictments filed in two separate criminal proceedings had both been signed by a Crown Prosecutor, who by the time that each indictment was filed, had ceased to be a Crown Prosecutor. I held that those indictments were invalid as they had failed to meet the requirement that indictments be signed by the DPP or a Crown Prosecutor in the name of the DPP.[2] I considered that the invalidity of these indictments could not be cured, and that their invalidity infected the subsequent convictions and sentences as the filing of an indictment is the very act which confers jurisdiction upon a court to hear and determine charges on an indictable offence.
[1][2018] VSC 447.
[2]Criminal Procedure Act 2009 s 159(3)(b).
In accordance with the reasoning in DPP v County Court, I find that the indictment filed on 1 May 2018 to which Mr Roote pleaded guilty is invalid. The conviction and sentence imposed are to be set aside. The charge is to be remitted to the County Court for determination by the sentencing Judge. The plaintiff is to pay the first defendant’s cost of the proceeding.
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