R v Aniba

[1995] QCA 529

IN THE COURT OF APPEAL	[1995] QCA 529
SUPREME COURT OF QUEENSLAND

C.A. No. 248 of 1995.

Brisbane

[R v. Aniba]

T H E Q U E E N

v.

BRETT ANDERSON ANIBA

(Applicant)

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Pincus J.A. Dowsett J. Lee J.

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Judgment delivered 01/12/1995

Judgment of the Court

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THE COURT MAKES NO ORDER

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CATCHWORDS:	CRIMINAL LAW - defective drafting of indictment - charge of carnal knowledge "against the order of nature" - offence not known to Queensland law - whether use of prescribed form of indictment deemed sufficient - form no longer of any legal effect - whether jurisdiction to set aside conviction - whether notice of abandonment effective - inherent jurisdiction to go behind notice of abandonment to avoid a miscarriage of justice.
S. 208, 707, Criminal Code O. IX r. 22, O.XIV, Form No. 141(1), 143 of Criminal Practice Rules 1900 S. 4, s. 14H Acts Interpretation Act 1954 R v. Connolly and Sleeman (No.2) [1922] St.R.Qd. 278 Dearnley [1947] St.R.Qd. 51
Counsel:	Mr T Glynn for the applicant. Ms L Clare for the respondent.
Solicitors:	Legal Aid Office for the applicant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	27 October 1995
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 01/12/1995

The applicant was convicted in the District Court at Cairns, having pleaded guilty to an indictment framed as follows:

"That on a date unknown between the 25th day of December 1993 and the 1st day of January 1994 at Bamaga in the State of Queensland you had carnal knowledge against the order of nature of (a named person)".

After hearing submissions on sentence the judge ordered that the applicant be sentenced to imprisonment for a period of two years and recommended that he be eligible for consideration for release on parole after a period of nine months.

An application for leave to appeal against sentence was subsequently filed and it came on for hearing in this Court on 27 October 1995. At that hearing counsel for the applicant did not press the contention that the sentence imposed was excessive, but drew attention to the defective drafting of the indictment. The applicant had in fact committed sodomy on a 13 year old boy, an act which is made a crime by s. 208(1)(a) of the Criminal Code:

"Any person who -

(a)       has carnal knowledge by anal intercourse of any person not an adult . . .

is guilty of a crime and is liable to imprisonment for 7 years."

Under s. 208(2) of the Code, by reason of the age of the child in question here, the punishment was 14 years imprisonment.

The indictment follows the wording of form no. 141(1) in Order XIV of the Criminal Practice Rules of 1900. Under s. 707 of the Code, a provision which gives power to prescribe, among other things, forms of indictment, " . . . every form so prescribed is to be deemed sufficient for the purpose, and sufficiently to state the offence . . . ". The effect of this provision was considered in Connolly and Sleeman (No. 2) [1922] St.R.Qd. 278; the facts are of some historical interest. McCawley CJ relied on s. 707 as a sufficient answer to a contention that the indictment there in question did not accord with the wording of the provision of the Code under which the appellants were charged, although it followed the form prescribed in the Criminal Practice Rules. Then in Dearnley [1947] St.R.Qd. 51, the consequences of a conviction by indictment following the prescribed form, but not the relevant section of the Code, were further considered. The charge was one of, to put it briefly, going armed in public in such a manner as to cause fear, whereas the offence in the relevant section of the Code is going armed in public in such a manner as to cause terror. E A Douglas J pointed out the difference between the meaning of "terror" and that of "fear" and said:

" . . . where the word in the section is capable of more than one meaning the form may give one of those meanings so as to constitute an offence. R v. Connolly and Sleeman [1922] St.R.Qd. 278 . . . but the use of the word "fear" instead of "terror" does alter the meaning of the word "terror". . . .

I think that the power contained in the Criminal Code and rules already stated does not extend to create another offence more easily proved and of a lesser nature than that provided by s. 69. Consequently the conviction should be set aside." (60)

Matthews J agreed with E A Douglas J as to this point (68).

These two cases were discussed in Forman [1983] 1 Qd.R. 85 by Macrossan J (as his Honour then was) with whom the other members of the Court of Criminal Appeal agreed. There, again putting it briefly, the offence stated in the Code was that of killing an animal capable of being stolen with a certain intent, but the relevant form made no reference to the capability of being stolen. It was argued that there was no such offence as was charged and so the conviction was bad. It was held in effect that in Dearnley it was not suggested "that the indictment, conforming as it did with the prescribed form, was itself bad in law as a statement of the offence"; and the setting aside of the relevant conviction in that case was said to have been based upon the judge’s directions to the jury. That is, with respect, consistent with the reasons of Philp J at p. 65, but not with those of E A Douglas J at p. 60; E A Douglas J appears to have been of the view that the form was not, insofar as it departed in a substantial way from the elements of the charge, validly made.

Here the differences between the form and the wording of the section which it purports to relate are at least as substantial as they were in Dearnley. There must be some limit on the extent to which a form can, while remaining valid, depart from the wording of the relevant section; for example, a form referring only to stealing could hardly be regarded as a proper exercise of the power under s. 707 if it purported to prescribe a mode of charging robbery. Further, there is the difficulty that the relevant form (no. 141) sets out three charges, one of which (the second) has no possible counterpart in the present s. 208. The justification for using the first of the three charges in the form as representing one of the two offences created by the present section 208 is no more than that its wording in some respects resembles that of the present section 208(1). The reason why one takes Form No. 141(1) to be referring to the present s. 208(1) rather than to the different sub-section with the same number which was once in force is that ordinarily that is taken to be the statutory intention: see s. 14H of the Acts Interpretation Act 1954. But that is subject to displacement by a "contrary intention appearing in any Act": s. 4 of that Act. It appears to us that the better view is that form no. 141 no longer has any legal effect; the replacement of the provisions to which it originally referred by legislation of a substantially different character is enough, in our opinion, to achieve that result. It is clear, we note in passing, that the same applies to form no. 143. We are of opinion that the provisions of s. 707 would not, in appropriate proceedings, save this conviction.

The next question is whether this Court has jurisdiction to set the conviction aside and if so whether that jurisdiction should be exercised.

On 30 October 1995 a notice of abandonment in the appropriate form under Order IX, r. 22 of the Criminal Practice Rules of 1900 was given. That rule concludes with the following words:

" . . . and upon such notice being given the appeal shall be deemed to
have been dismissed by the Court of Criminal Appeal ".

This Court’s jurisdiction depends upon the matter being before it under one of the provisions of the Code conferring jurisdiction on this Court. There is no appeal before the Court, but only an application for leave to appeal. It seems clear that the part of r. 22 which we have quoted should be read as referring, in relation to an application for leave to appeal, to dismissal of that application; prima facie, on such dismissal, this Court’s functions with respect to the case are at an end.

But it is now well settled that in appropriate circumstances a notice of abandonment under r. 22, or under the corresponding rules in other jurisdictions, does not necessarily put an end to the Court’s power to deal with an appeal. In Queensland (Tabe [1983] 2 Qd.R. 60, Green [1989] 1 Qd.R. 408) as well as in other States, it has been held that if the mind of the signatory of the notice of abandonment did not go with the act (Zakarian [1971] V.R. 455) or, if the document was signed without the fullest appreciation of its significance (Griffin (1969) 90 W.N.(Pt.1) N.S.W. 548 at 549), the Court may entertain the appeal despite the notice of abandonment. To similar effect is Hastie (1981) W.A.R. 365 and Turan (1989) 2 W.A.R. 140. In Bell (1987) 8 N.S.W.L.R. 311, it was said that there is inherent jurisdiction to go behind the New South Wales rule corresponding to our r. 22, to avoid a miscarriage of justice; in Johnson (1992) 57 A.CrimR. 290, the West Australian Court of Criminal Appeal left open the question whether that should be accepted. The point is perhaps of some significance here, where there is no question of the notice being held void because the applicant did not appreciate its significance. But there is another possible basis for going behind the notice of abandonment, namely that the indictment did not charge an offence known to Queensland law.

It does not appear to us necessary, however, to decide whether there is as Bell suggests an inherent jurisdiction to go behind r. 22 to prevent a miscarriage of justice. Assuming such jurisdiction to exist, it should not be exercised by the Court in the present case. Counsel for the applicant has, by his submissions, informed us that the applicant wishes to abandon his application for leave to appeal against sentence. He has also told us of the applicant’s willingness to have the indictment amended so as to overcome the difficulty; counsel has made submissions with respect to the question of the power to make such an amendment.

The point is, as it seems to us, that the applicant has clearly indicated that he does not wish to pursue the matter further; it may be that this is so because, according to his counsel’s submissions, "he has reached the stage of his term of imprisonment where the necessary steps which must be taken towards his release have been commenced". If we were to further entertain the matter it could only be with a view to quashing a conviction which, the applicant, having taken advice, does not wish to attack. Although at the end of his written submission counsel for the applicant submits the Court should amend the indictment, it is our opinion that we should not (assuming that there is power) consider doing so, but should rather give effect to r. 22; if that is done, then the Court is simply no longer seized of the matter.

We make no order.