Jenkin v The Director of Public Prosecutions (Queensland)

[1992] HCATrans 109

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B39 of 1991

B e t w e e n -

PAMELA ROSE JENKIN

Applicant

and

THE DIRECTOR OF PROSECUTIONS

(QUEENSLAND)

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 APRIL 1992, AT 9.32 AM

Copyright in the High Court of Australia

Jenkin 1 10/4/92

MR N.J. MacGROARTY:  May it please the Court, I appear for

the applicant. (instructed by J. Hodgins,

Director, Legal Aid Office (Queensland))

MR D.L. BULLOCK: If it please the Court, I appear for the

respondent. (instructed by D. Field, Solicitor to

the Director of Public Prosecutions (Queensland))

DEANE J: Yes, Mr MacGroarty.

MR MacGROARTY: If the Court pleases, firstly I would refer

to the application for special leave to appeal

which appears at page 51 of the record and, more

particularly, I would refer to paragraph 2 thereof

which requests that the application be dealt with

in accordance with practice direction number 1 of

1991. That request was made erroneously, may it

please the Court, and I do not pursue that request.

It would be my submission that the matter is dealt

with as an application for special leave to appeal

as in a civil matter.

May it please the Court, the grounds of the

application for special leave to appeal appear at

page 61 of the record through to page 63 and if I

could turn to ground (b), which states:

The important question of law involves the

true and correct meaning and interpretation of
the words "entitled to be discharged" where
they appear in section 590 of the Criminal

Code of Queensland, which in turn involves the

question whether the Supreme Court of

Queensland, having had its jurisdiction

enlivened by virtue of the Applicant making

application to it pursuant to Section 590 of

the Criminal Code of Queensland is entitled to

control the future conduct of any such

criminal proceeding so brought before it or

alternatively whether a ·prosecuting authority

has the right to refrain indefinitely from

presenting an indictment against a person who

has been committed for trial and who has

thereafter made application pursuant to

Section 590 of the Criminal Code of Queensland

to be brought to his trial.

It is submitted, may it please the Court, that the normal situation in a criminal matter is that

the criminal jurisdiction of the court in question is enlivened by the presentation of the indictment

to that court charging the person with the offence

or offences specified. However, it is my

submission to the Court that - I do not quibble

with that proposition. Authority for it is to be

found in Jago's case, which is one of the cases

Jenkin 10/4/92

given in the list to Your Honours, at page 36 in

the judgment of Mr Justice Brennan, where he says:

An indictment, being the foundation of the record of criminal proceedings enlivens the

jurisdiction of the District Court to hear and

determine the offence therein charged.

That is the normal situation, but His Honour went

on to say this:

Absent any special statutory investiture,

the District Court has no jurisdiction in a

criminal matter prior to the presentation of

an indictment.

It is our submission that here there is a

provision, a statutory provision, which changes

that situation. I would refer of course to

section 590 of the Criminal Code. Section 590(1)

under the heading "Right to be tried" reads:

A person committed for trial before any court

for an indictable offence may, orally or in

writing at any time during any Sittings of the

Court held after his committal, make

application to the Court to be brought to his

trial.

It is my submission to the Court that a person

committed for trial may bring such an application

whether or not an indictment has already been

presented against that person. There is nothing in

section 590(1) which limits or confines the

bringing of an application to the court to be
brought to his trial to a person who has had an

indictment presented against him in that court. It

is based on any person who has been committed for

trial.

So what I am submitting to the Court is this,

that you have an order of a magistrate committing a
person for trial; the Director of Prosecutions may

present an indictment and that indictment, after

presentation, may not be set down for hearing, but

a person being a person committed for trial is

entitled, nevertheless, to bring an application to

that court to be brought to his trial.

But more importantly, in my submission, the

subsection also confers such a right upon a person

who has been committed for trial to a particular

court, where no indictment has been presented

against that person and that is, in my submission,

a special statutory investiture of the type that

Mr Justice Brennan was speaking of at page 36.

Jenkin 10/4/92

This seems to be recognized by the Queensland Court of Criminal Appeal in Reg v His Honour

Judge Noud, ex parte MacNamara, (1991) 2 Qd R 86.

The court there comprised Mr Justice Demack,

Mr Justice McPherson, as he then was, and

Mr Justice Williams. Mr Justice Demack agreed with

the reasons of McPherson J and Williams J, and at

page 93 Mr Justice McPherson said, at point 45 of

page 93:

It may therefore be accepted that courts,

including a District Court, possess a power

exercisable even before trial to ensure that

justice is properly administered in

proceedings that have been commenced in that

court.

Now, it is my submission that the bringing of an

application, which is what occurred in the present
case here to His Honour Mr Justice Kneipp in
Townsville, pursuant to section 590 constitutes a
special statutory investiture, as

Mr Justice Brennan speaks of, and gives or enlivens

the jurisdiction, in this case of the Supreme Court

of Queensland in Townsville.

In Jago's case, if I could refer Your Honours

to the judgment of Mr Justice Deane at page 56

between point 2 and 3 thereof, he said this:

Once a court is seised of criminal

proceedings, it has control of them.

My submission is that section 590 entitles or vests a right in any individual committed for trial to

bring such an application to the court to be

brought to his trial, and once he brings that

application the court's jurisdiction is enlivened

and the court retains control thereafter of the

situation.

What the judgment of the majority in the Full

Court of Queensland means where it ruled that the

entitlement to be discharged which appears in

section 590(3) is an entitlement to be discharged

from the effects of the order committing him for

trial. That interpretation of the majority of the

Full Court effectively takes the control of the

matter out of the court's hands, the control which,

according to Mr Justice Deane, is in the court's

hands once the court is seized of the matter.

My submission is based in this regard entirely

on the proposition that section 590 is a special

statutory investiture which changes the position.

I do not quibble with the proposition that prior to

the presentation of an indictment in the normal

Jenkin 4 10/4/92

situation, the court has very limited jurisdiction.

It can grant bail, it can grant adjournments before

the presentation of the indictment, and that is

provided for in section 592 of the Criminal Code,
but here the special jurisdiction to entertain an

application of a person to be brought to his trial

pursuant to his right to be tried enlivens the

jurisdiction in a special way, if it should be the

case that the application is brought before the

presentation of the indictment.

And so, my submission proceeds on the basis that that jurisdiction is enlivened in that way by

that application, that once it is enlivened the

court has control of the matter, and that the
control of the court in the matter would be

defeated entirely if it was left as an arbitrary

situation to the prosecuting authority to frustrate

the right of the individual to be brought to his

trial and to frustrate the control of the court to

ensure that he was brought to his trial, and that

is, in my submission, what is meant by the decision

of the majority in the Full Court.

DEANE J: Mr MacGroarty, is there anything in the cases that

- apart of course from Justice Thomas' judgment in

this case - supports your construction of "to be

discharged" in a context such as this?

MR MacGROARTY:  I am not aware of any authority other than

that of Mr Justice Thomas in the present case.	On
my research, I have been unable to find any case
that specifically supports this proposition, but,

may it please the Court, on the basis of my

research, the specific section of the Criminal Code

of Queensland, section 590, has not been tested in

this way before, other than the single judge
decisions of Tasmania and the Northern Territory in

the outline of argument.

DEANE J: Which are referred to in the judgments.	DEANE J: Which are referred to in the judgments.
MR MacGROARTY:  In the outline of argument. The position is

that in Australia, the Code States, Queensland,

Western Australia, Tasmania, and also the Code

applying in the Northern Territory, have enacted in

Queensland section 590, and the other sections

which are mentioned in the booklet provided in the

other States, in much the same or precisely the

same language. To the best of my knowledge, it is

only those two single judge decisions that have

ever been decided upon the issue.

Jenkin 10/4/92

In my submission, the majority of the judgment would entirely frustrate the Court having any

control over the proceedings.

DAWSON J:  It is not so much a question of control over the

proceedings as control over the body of the accused

really, is it not? This section arose out of the

Habeas Corpus Act, did it not?

MR MacGROARTY: Section 590, may it please Your Honour, was

Habeas
drafted into the Code following on the out in the judgment of Mr Justice Thomas, the draftsman, in drafting section 590 of the Criminal

Code, it would seem in a positive way, did not

Habeas Corpus

adopt the wording of section 6 of the his imprisonment".

DAWSON J: Of course, that would not be appropriate; he or

she may be on bail.

MR MacGROARTY:  It may or may not be the case.

DAWSON J: But the word "discharge" is hardly appropriate to

bring about a result the equivalent of acquittal,

is it?

MR MacGROARTY:  That is dealt with again in the judgment of

Mr Justice Thomas where he says that the draftsman

could have included the words, "discharged from liability", but did not do so. But this is the whole point at issue, that the draftsman, in

section 590, by simply using the word "discharged"

with nothing further to qualify it, has created an

ambiguous situation as to the meaning of that. As

this honourable Court - - -

DAWSON J: It is not really ambiguous, is it, because the

whole section is related to a situation where there

has been a committal, and committal proceedings

essentially determine what is to happen to an

accused pending his trial. He is either to remain

in prison, to go on bail, or to be discharged, and

this section - - -

MR MacGROARTY:  Or committed for trial.

DAWSON J: Well, committed for trial, that really has no

effect, except in a practical sense. It is up to

the Crown whether they prefer an indictment or not, but essentially committal proceedings are concerned with what happens to the accused in that period,

and this is discharging - when it says "discharge"

here, it means discharge from the effect of the

committal.

Jenkin 6 10/4/92

MR MacGROARTY: With respect, Your Honour, where the

magistrate has ruled there is a case to answer and

so thereby orders that he be committed for trial,

and whether he remains in prison or obtains bail

from the magistrate in the first instance, or

subsequently from the court under the Bail Act in

Queensland, the fact remains that he thereby

acquires a right to be tried pursuant to

section 590 of the Criminal Code, and it is that

right to be tried that is being denied to her here

when the majority of the Full Court interpret the

word "discharge" to mean simply discharge from the

effect of the order for committal because there

must be, in my submission, some - once the

draftsman includes the words "right to be tried"

and follows it with the provisions of

subsection (1) which entitles a person who has been

committed to make an application to be brought to

his trial, and the term "to be brought to his

trial" can be seen from section 594 of the Criminal

Code to mean "to be arraigned on an indictment", then the right to be tried would simply be nugatory

and of no effect whatsoever in that situation.

It is my submission that a person who has been committed for trial has that right to be tried, and

that is set out in chapter 52 of the Criminal Code,

that he has a right to be tried. The same can be

said in relation to section 561 of the Criminal

Code which deals with a person against whom an

ex officio indictment has been presented. He has a

right to be tried in the sense that if they do not

bring him to trial within 12 months of the

presentation of that ex officio indictment, then he

can apply to the judge of the court under

section 561 of the Criminal Code, and the judge has

a discretion to direct an order that the accused is

entitled to bring himself to his own trial.

DAWSON J: That is where there is an indictment.

MR MacGROARTY: That is so.
DAWSON J:	We are dealing here with a situation where there

is no indictment.

MR MacGROARTY:  But under section 590, may it please the

Court, there may or many not be an indictment. You

see, section 590(1) does not preclude a person

against whom an indictment has been presented after

that person has been committed for trial, does not

preclude such a person from bringing an application

to be brought to his trial.

DAWSON J: But it also applies to a person against whom the

only thing is the committal.

Jenkin 7 10/4/92

MR MacGROARTY: That is so, and it is my submission that

what it makes clear is that this chapter of the

Criminal Code is giving the court specific powers

in relation to accused persons when there are

matters of delay and, in the court's view,

unreasonable delay - - -

DAWSON J: There are great difficulties about that, are

there not, Mr MacGroarty, because there is no issue

before the court until there is an indictment.

There is, of course, the fate of the accused

pursuant to the committal, and that the court can

deal with, but there is no issue which the court

can determine, as you say it can.

MR MacGROARTY: Well, it is my submission that section 590

gives to the court the right to determine whether
the person be brought to his trial on the basis of

the offence for which he was committed.

DAWSON J: So, if what you are saying is correct, there

would be an autrefois acquit available to the

accused if fresh proceedings were brought.

MR MacGROARTY:  Yes, may it please the Court - sorry, my

apologies - what I am submitting is that if the

fresh proceedings were brought the accused would be

entitled to make application to stay those

proceedings, as being an abuse of process on the
basis that the court had previously ordered his

discharge from further prosecution.

DAWSON J:  You say there would not be an autrefois?

MR MacGROARTY:  No, I am sorry, Your Honour. What I submit

is that if fresh proceedings were brought, whether
by way of a fresh committal hearing or whether by

the presentation of an ex officio indictment, it

would be my submission that the appropriate course

then for the accused person would be to apply it to that court, to stay the proceedings on the basis of

an abuse of process in that the court had

previously ordered that he or she be discharged in

respect of the charge upon which she was committed

for trial, and it would be up to that court, on

such an application, to stay the proceedings to

determine that issue. But I submit that would be

the correct situation, not a situation of autrefois

acquit.

DAWSON J:	So that the accused could be proceeded against for some other offence than the one on which he or
she was committed for trial?

MR MacGROARTY: Well, that would be a different situation

because pursuant to section 590, the person is

Jenkin 8 10/4/92

committed for trial on a particular offence or

offences to a court.

DAWSON J: But he need not be indicted upon those offences.

MR MacGROARTY:  No, he need not be indicted upon those

offences but in my submission, once he makes

application and thereby enlivens the jurisdiction

of the court in that fashion, pursuant to

section 590, if the Crown unreasonably delays in

presenting the indictment, as it did here after

notice, then the court, in keeping control of the

situation relative to the charge upon which he was

committed for trial - - -

DAWSON J: That is not a charge which is before the court,

that is what I mean, there is no issue, in that

sense, before the court. The only issue that there

can be is the freedom of the accused.

MR MacGROARTY:	With respect, Your Honour, that freedom - or the person of the accused as is Your Honour's
contention, being the only issue before the court,
completely overlooks, in my submission, the
drafting or the wording of the Code where the
section is headed "The right to be tried", and then
provides that the individual person so committed
has this vested right to make an application to be
brought to his trial.  And, it is my submission
that Your Honours suggest that approach to the
matter would completely overlook and ignore what is
in the section 590, that is the right to be tried
and the right to bring an application to be brought
to your trial.  And it is that particular
jurisdiction, in my submission, which arises here by virtue of the specific provisions of the section
of the Code. It is quite separate and distinct
from what applies in common law or under the Habeas Corpus Act where that applies, because there it
specifically provides that the person is to be
was quite specifically omitted in the provision of
discharged from his or her imprisonment, but that
section 590.
DAWSON J:	You see, what "committed for trial" means is

committed to gaol to await trial or, of course, if

bail is obtained then the person is released from

imprisonment. The committal for trial on a

particular charge does not bring that before the

court at all, that charge.

MR MacGROARTY:  I agree, Your Honour. In the normal course

of events nothing comes before the superior court

until an indictment is presented.

DAWSON J:  And the committal is a committal to prison to

await trial or a discharge.

Jenkin 9 10/4/92

MR MacGROARTY: Yes, I agree. But what I am submitting is

that in the Code States, and more specifically in

Queensland under section 590, that has changed the

situation; whereas without the provision of

section 590 the court would have no or very limited

jurisdiction prior to the presentation of the

indictment. Section 590, in my submission,

constitutes the enlivening of the court's

jurisdiction for a particular and specific purpose,

and that purpose is to control the question of the

individual person so committed that person's right

to be tried, and his vested right to make an

application to be brought to his right. And it is

my submission that that changes the position from

provisions such as section 590, changes the
position as it otherwise stands in the criminal

law, and changes it certainly in the Code States

which have the same provision as section 590 or

very similar analogous provisions, and creates, in

my submission, a special jurisdiction if you like,

by virtue of the Code saying, "You have a right to
be tried and you have a right to make an

application to be brought to your trial once you

have been committed" .

May it please the Court, the other basis of my

arguments in this regard are that it is an

important question of law. It is of general

application in that it would apply to the other same or very similar statutory provisions, and therefore it is a matter of public importance and

of general application beyond the State of

Queensland.

The other basis of my submission is that there

is a difference of opinion within the Supreme Court

of Queensland. Certainly as things stand, the

majority judgment of the Full Court prevails.	But
that does not alter the fact that within the
Supreme Court of Queensland two judges,

Mr Justice Thomas in the minority in the Full

Court, and Mr Justice Kneipp, sitting singly in

Townsville, two judges of the same court have come

to a different conclusion, and what I am submitting
there is that if Your Honours consider that the

judges of the Full Court of Queensland by their

individual judgments demonstrate quite serious and
rational argument on each side of the question in
issue in this case - that issue being pursuant to

section 590 - makes it a suitable and appropriate

matter in which this honourable Court would grant
special leave and would resolve the matter with

finality as the final court of appeal in Australia.

Your Honours, I particularly commend to

Your Honours some passages in the judgment of

Jenkin 10 10/4/92

Mr Justice Thomas and they appear, may it please

the Court, starting at page 24 of the record at

line 5, Your Honours. His Honour

Mr Justice Thomas said this:

Here more than one meaning is possible -

for word "discharge" -

and the context does not clearly point to one

legal solution or the other. In that

situation one should be prepared to give some

weight to the ordinary meaning of "discharge".

And then he quotes from the Oxford Dictionary and I

will not read that. He goes on at line 53:

This naturally favours the defence

submission. Of course a narrower meaning may

be justified, but one would need to find some

contextual source for it. I have some

difficulty in reading such a limitation into

the word in the context of section 590,

particularly having regard to its heading

"Right to be tried". Such a heading may be

taken into consideration in determining the

meaning of an ambiguous provision, and may

sometimes be of service in determining the

scope of a provision.

Referring to Silk Bros case, the then Chief Justice

Mr Justice Latham, page 16:

If the Crown's contention is correct,

"discharge" means no more than discharge from

custody or from bail obligations, or, in
O'Leary J's words, from the condition of a person committed for trial. But that does not

bring him to trial or even any closer to

trial.	He remains liable to be tried for the
same offence at any time the Crown chooses to

present an ex officio indictment or to

commence a fresh committal. Some fetters are

removed but he remains in limbo. His ultimate

position has hardly improved.	The "right to
be tried" would be empty.

If section 590 sets out to give a person

the "right" to be tried, this is not achieved
by allowing the Crown the control of the
situation including the right to bring him to

trial when it chooses and not when the court

directs. It is only by the creation of a

strong sanction such as discharge from

criminal liability that the Crown's hand may

be forced.

Jenkin 11 10/4/92

And I emphasize to the Court here, once the

application had been made to His Honour

Mr Justice Kneipp in Townsville, which was made in

March 1991, some 12 months after her original

arrest, and I think some four to five months after

the order committing her for trial, His Honour

Mr Justice Kneipp expressed certain views as to

what he thought should happen, but did not make any

specific order and the matter then proceeded from

March until June 1991, without the Crown taking any

step whatsoever.

DAWSON J: Well, we are not really concerned with the facts,

are we, Mr MacGroarty, in this case?

MR MacGROARTY: Well, I am only mentioning them in this

context, may it please Your Honour, that in the

light of what His Honour Mr Justice Thomas in that

passage of his judgment to which I have just

referred Your Honours, where he says:

the "right" to be tried is not achieved by
allowing the Crown a control of the situation
including the right to bring him to trial when
it chooses and not when the court directs. It
is only by the creation of a strong sanction

such as discharge from criminal

liability - - -

DAWSON J:  I have great difficulty, taking you back a bit

with that: you say that discharge from criminal

liability does not provide a plea of autrefois

acquit, that all that the accused could do, if an

indictment were brought, was to plead abuse of
process of the court. But if it is an abuse of the
process of the court, it is not dependent on some

order having been made; it either is or it is not.

MR MacGROARTY:  The right of the court, in controlling the

proceedings before it once an application has been

brought, includes the right -

DAWSON J: But a court can always stay proceedings when

there is an abuse, you would not need an order to

that effect for that to take place. But "discharge

from liability" really must mean something more

than that, what does it mean?

MR MacGROARTY: In my submission, a discharge from liability

means a discharge from liability to be prosecuted

on that charge upon which the person has been

committed for trial.

DAWSON J:	To the same effect as an acquittal?
MR MacGROARTY:	It may amount to that in practical terms, but if the court made that order - - -

Jenkin 12 10/4/92

DAWSON J: Could it be a plea in bar of a new sort?

MR MacGROARTY: It is certainly not provided for in

section 598 which sets out the pleas that a person

against whom an indictment has been presented may
plead, it is not specifically provided for.

Section 598 is silent on the matter and does not

comment one way or the other. So that perhaps it

could be argued that the order of the court "be

discharged from further prosecution on the charge

upon which the individual is committed" was a

matter of autrefois acquit. However, it could also

be argued, in my submission, that any new or fresh

indictment preferred after such an order made

would, in fact, be and constitute an abuse of the

process of the court, and one could move, in that
fashion, to stay that indictment.

All I was saying, previously, may it please the Court, was that that last passage of the

judgment of His Honour Mr Justice Thomas, on
page 25 of the record, at line 38:

Ifs 590 sets out to give a person the

"right" to be tried, this is not achieved by
allowing the Crown the control of the
situation including the right to bring him to

trial when it chooses and not when the court

directs.

I interpose there to say that the Crown, of course,

has the right to bring a person to trial when it
chooses, in the absence of an application made
under section 590. But once an application is made

under section 590, in my submission, it is not a

matter any more for the Crown to choose when it
will bring the person to trial but for the court to

control. And His Honour goes on to say:

it is only by the -

DEANE J:  Mr MacGroarty, you can assume that all members of

the Court have read the whole of Justice Thomas's

judgment, which means:  make any points you want to

make about what His Honour says, but it is

unnecessary to read it all to us again.

MR MacGROARTY:  I am sorry, Your Honour, I was simply trying

to emphasize the point I wish to make.

DEANE J:  I was not trying to stop you doing that, I was

just trying to help you by telling you we have all

read it.

MR MacGROARTY:  Yes, I am aware of that, Your Honour, but I

was simply trying to make the point, by way of

emphasis, that the Crown, in this case, had ample

Jenkin 13 10/4/92

opportunity to present an indictment and then abide

by any decision of the court. If it had an

application to make for an adjournment on the basis

that it needed time or whatever, it had ample

opportunity to present the indictment and abide the

order of the Court regarding any adjournment.	But
where it simply says - after an application has
been brought under section 590, where the Crown simply declines to do anything about it then, as

His Honour points out, the court having control of the matter, the sanction exists in discharging the

person from criminal liability and that is a means

by which the Court can force the Crown's hand.

It is my submission that the whole position

changes specifically because of the provisions of

section 590. It creates this specific jurisdiction

to give the court control of the matter and ensure

that a person's right to be tried is acknowledged

and that a person can be brought to his trial. In

that way, in my submission, it changes the

pre-existing position completely from what had been

the case prior to the enactment of section 590

where nothing could be done by the court prior to

the presentation of an indictment other than

statutory provisions such as bail applications and,

as I say, statutory provision here pursuant to

section 592 where an adjournment can be granted,

even though no indictment has been presented, and

of course the inherent power of the court to stay

of proceedings for an abuse of process.

So in summary, may it please the Court, my

submission is that those grounds have been made out

to show that a special and important point of law

exists of general application that requires

resolution by this honourable Court when the only

appellate court that has considered the matter has

done so in circumstances where two judges of the

same court are of a different view to the majority.

DEANE J: Thank you, Mr MacGroarty. The Court need not

trouble you, Mr Bullock.

The question which would be involved in an

appeal in this matter is a straightforward but
important question of the construction of the words

"to be discharged" in section 590(3) of the

Queensland Criminal Code.

All members of this Court have come to a firm

conclusion that the construction given to those

words by the majority of the Full Court of the

Supreme Court of Queensland is the correct one. In

these circumstances, an appeal to this Court would

not enjoy sufficient prospect of success to justify

Jenkin 14 10/4/92

a grant of special leave to appeal. Special leave

to appeal is accordingly refused.

AT 10.13 AM THE MATTER WAS ADJOURNED SINE DIE

Jenkin 15 10/4/92