Director of Public Prosecutions v Roote

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.

CaseChat Overview and Summary

The Director of Public Prosecutions sought judicial review of the trial of Roote, where an indictment was filed against him without the signature of a Crown Prosecutor. The issue arose because the Crown Prosecutor who was originally assigned to the case ceased to hold office before the indictment was filed, and the replacement prosecutor did not sign the indictment. The matter was brought before the court to determine whether the indictment was valid despite the absence of the required signature.

The legal issues before the court were whether the absence of the Crown Prosecutor's signature rendered the indictment invalid, and if so, what the appropriate judicial review remedies were. The court considered whether the absence of the signature constituted a fundamental procedural defect under the Criminal Procedure Act 2009, and if so, whether the error could be rectified through consent orders or if a more stringent remedy was necessary.

The court held that the absence of the Crown Prosecutor's signature was indeed a fundamental procedural defect that rendered the indictment invalid. However, the court found that the error could be rectified by way of consent orders. The court was satisfied that the consent orders would appropriately address the procedural defect and ensure the trial proceeded fairly, without the need for a more stringent remedy such as quashing the indictment and re-indicting Roote. Consequently, the court granted the consent orders sought by the Director of Public Prosecutions.

No further orders were made by the court. The consent orders were sufficient to address the procedural defect, and the trial could proceed as planned with the necessary corrections in place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established