Powers v The Queen
[2000] TASSC 155
•3 November 2000
[2000] TASSC 155
CITATION: Powers v R [2000] TASSC 155
PARTIES: POWERS, Jay
v
R
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 255/2000
DELIVERED ON: 3 November 2000
DELIVERED AT: Hobart
HEARING DATES: 12 October 2000
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law - Jurisdiction, Practice and Procedure - Prosecution - Costs - Committal for trial by Justice or Coroner - No jurisdiction in Supreme Court in absence of indictment.
Justices Act 1959 (Tas), ss3, 56, 56(3), 56(A)1, 2 and 6, 61.
Criminal Code 1924 (Tas), ss310(1) and (4), 345, 345(3), 350.
Cooper v Graves (1997) 6 Tas R 390; Miller v Baker (1995) 5 Tas S R 322; R v Hill [1982] Tas R 1, followed.
Maxwell v R (1995) 184 CLR 501; Gipp v R (1998) 102 A Crim R 299; Director of Public Prosecutions (SA) v B (1998) 72 ALJR 1175; R v Heald [1979] Tas R 185, considered.
Aust Dig Criminal Law [666]
REPRESENTATION:
Counsel:
Applicant: C J Gunson
Respondent: L C Lodge
Solicitors:
Applicant: Abetz Curtis & Worsley
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 155
Number of Paragraphs: 15
Serial No 155/2000
File No 255/2000
Jay Powers v The Queen
REASONS FOR JUDGMENT SLICER J
3 November 2000
On 7 August 2000, counsel for the Director of Public Prosecutions advised the Supreme Court that the Crown did not intend to take any further proceedings in the prosecution of the applicant for the crimes of wounding and assault, and would take no further steps in relation Complaint Number 8597/99, the process which had commenced the prosecution. On that day, the applicant was relieved of further obligations to attend Court in relation to the complaint and was discharged. Before discharge, his counsel made application in accordance with the provisions of the Costs in Criminal Cases Act 1976.
No indictment had been filed by a Crown law officer.
On the resumed hearing, counsel for the applicant sought an order that the complaint be brought into Court so that it could be dismissed. That application was made since there exists no power to make a costs order unless the person charged with the offence has been discharged upon an indictment or the complaint withdrawn. The Costs in Criminal Cases Act, s4, states that a person is discharged:
" … where -
(a) he is acquitted of the offence;
(b) the complaint charging him with the offence is dismissed or withdrawn; or
(c) he is discharged upon an indictment for the offence …"
The Crown has not sought to withdraw the complaint. It is clear from authorities in this state (Cooper v Graves (1997) 6 Tas R 390, Miller v Baker (1995) 5 Tas SR 322) that there exists no power to order costs in accordance with the Costs in Criminal Cases Act or otherwise until one of the pre-conditions stated in that Act, s4, has occurred.
The position of the Crown is that there exists no power to either have the complaint brought before the Court or, if so, to order its dismissal. Its position is that the complaint is a process whereby a person is brought before a court empowered to commit a person for trial. When a committal order is made, the complaint ceases to have effect and it is the order which affords the Supreme Court jurisdiction. The decision not to file an indictment and thereby permit an accused person to be relieved from further obligation to attend on his or her trial brings the matter to an end.
The Justices Act 1959 ("the Act"), s3, defines a complaint as meaning:
" … a written allegation of an indictable or simple offence or of a breach of duty made to a justice; …"
A person charged with an indictable offence is to be brought before a place (s56) for the examination of witnesses. On first appearance, certain procedural steps must be observed (s56A(1) and (2)) and, if no adjournment is sought, the person charged is required to enter a plea (s56(3)) and, if he or she pleads "not guilty or cause to show" by virtue of the Act, s56A(6), is to be asked:
" … to choose one of the following courses:
(a)that the defendant requires the depositions of witnesses to be taken before a justice and proposes to dispute that an order for committal be made;
(b) that, while not disputing that an order for committal be made, the defendant requires the depositions of one or more witnesses to be taken before a justice before the order for committal is made;
(c) that the defendant does not require any depositions of witnesses to be taken before a justice."
If the Justices are "of opinion that (the evidence) is not sufficient to put the defendant upon his trial for any indictable offence, (they) shall forthwith order the defendant, if he is in custody, to be discharged as to the complaint then under inquiry" (the Act, s61). That discharge does not permit an order for costs (Miller v Baker (supra)).
The committal process is derived from the institution referred to as the Grand Jury, established during the Assize of Clarendon in 1166 (Plucknett, T, A Concise History of the Common Law, 5th ed 1956), but which was replaced, but not entirely, during the 14th century by Cornish, W, The Jury 1968, see generally Bishop, J, Criminal Procedure, 2nd ed, Butterworths 1998, ch 6. The primary function was inquisitorial and the depositions were used by the justices and the Grand Jury (acting as an advisory body) to decide whether or not a case was fit for trial. There was no adjudication of guilt. It is the order of committal which grounds the jurisdiction of the Supreme Court. Different provisions govern the procedure where a person pleads guilty before the Justices and is committed for sentence (the Act, s63). In those cases, the complaint remains the initiating document upon which the matter proceeds, but in such a case it remains the committal order which affords jurisdiction.
The Criminal Code 1924 ("the Code"), s345, provides:
"Right to be tried
345 (1) A person committed for a trial for a crime may, at any time during the first week of the term, or the first day of the sessions of oyer and terminer and general gaol delivery held after his committal, make application in open court to be brought to trial.
(2) If such person is not indicted within such term or sessions as aforesaid he may, upon the last day of such term or sessions, make application in open court for bail, which the court shall grant, unless it appears upon oath to the court that the witnesses for the Crown could not be produced at the same term or sessions as aforesaid.
(3) If any such person as aforesaid is not indicted during the sessions next after such sessions as aforesaid, he shall, upon his prayer or petition in open court, the first week of the term or the first day of the sessions thereafter, be discharged."
Discharge by way of the Code, s345(3), does not constitute an acquittal and does not prevent the finding thereafter of an indictment for the same offence (R v Hill [1982] Tas R 1).
When a person "has been committed for trial and it is intended to put him on his trial … the charge is to be reduced to writing in a document called an indictment" (the Code, s310(1)). A Crown law officer has a discretion whether or not to file an indictment, but before doing so " … shall satisfy himself that there is evidence against the defendant sufficient to put him on his trial or to raise a strong or probable presumption of his guilt" (the Code, s310(4)).
The decision by a Crown law officer not to present an indictment or to file a nolle prosequi remains solely within the discretion of that officer and is not subject to judicial approbation (Maxwell v R (1995) 184 CLR 501; Gipp v R (1998) 102 A Crim R 299; Director of Public Prosecutions (SA) v B (1998) 72 ALJR 1175). In cases where a nolle prosequi is entered once the trial has commenced (including at a stage prior to the swearing in of a jury), there exists the power to direct an acquittal (the Code, s350, R v Heald [1979] Tas R 185).
This Court does not have power to require a Crown law officer to place before it the complaint in order to dismiss it. It has power, upon application made by a person convicted or acquitted of a crime, pursuant to s385A(2), to:
" … hear and determine any complaint of a simple offence arising out of facts that are closely related to the facts alleged in the indictment or which are, or form part of, a series of offences of the same or a similar character to that of which the applicant has been convicted or acquitted, as the case may be."
but not otherwise. There is power for the Court to order that an accused be tried summarily (the Code, s308) and it may be that in such a case the jurisdiction is afforded by the existence of the complaint, but an order made pursuant to s308 is itself dependent on the committal order not the complaint.
It follows that I have no power to make the order sought. The application is refused.
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