R v Bertomue

[2014] QDC 226

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Bertomue [2014] QDC 226

PARTIES:

THE QUEEN
(Applicant)

v

CHRISTOPHE PHILIPE BERTOMUE
(Respondent)

FILE NO/S:

SOUT-DIS 258/2014

DIVISION:

Criminal

PROCEEDING:

Application to extend time to present indictment

DELIVERED ON:

26 September 2014

DELIVERED AT:

Southport

HEARING DATE:

26 September 2014

JUDGE:

Judge C F Wall QC

ORDER:

Application refused

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – application for an
extension of time to present indictment – whether good cause

to grant the extension – failure to obtain consent of Attorney-General to commence prosecution in a situation where consent was required

Criminal Code s. 415(5) and 590(2)(b) and (d)

COUNSEL:

Mrs J Geary for the Applicant

Mr A Vasta QC for the Respondent

SOLICITORS:

Director of Public Prosecutions for the Applicant

Nathan Lawyers for the Respondent

HIS HONOUR: This is application by the Crown under section 590 of the Criminal Code for an extension of time within which to present an indictment against the accused in relation to five charges of extortion with a circumstance of aggravation. Extortion is an offence under section 415 of the Criminal Code. Section 415(5) provides as follows:

A prosecution for an offence in which it is intended to rely on a circumstance of aggravation mentioned in paragraph (a) or (b) of the penalty, cannot be commenced without the consent of the Attorney-General.

The Attorney-General has not given consent in the present case.  There are five separate complainants - one for each charge.  The respondent was committed for trial on the 16^th of April 2014.  It was a full hand up committal with no cross-examination of witnesses.  He is currently in custody.  Mrs Geary, for the Crown, concedes that the respondent should never have been charged with extortion with a circumstance of aggravation because there was no consent to that course by the Attorney-General.  She concedes that, therefore, he should never have been committed for trial on such a charge and further, that therefore he cannot be indicted other than by way of an ex officio indictment.

Section 590(2)(b) and (d) provide as follows:

If it, (b) becomes apparent that evidence necessary to establish the offence is not going to be available, or, (d)  for any other reason, it is impracticable to present the indictment 

The Crown may apply to the court at any time before or after the expiry of the period for an extension of time within which to present an indictment.  Subsection (3) provides that the court hearing the application may, if satisfied that good cause is shown and no miscarriage of justice is likely to result, grant the extension of time the court considers just. 

I’m not satisfied that good cause has been shown.  I agree with Mr Vasta that the application was misconceived in the circumstances.  What the court is being asked to do is extend time in respect of a charge which is a nullity in the first place because of the absence of consent by the Attorney-General.  Mrs Geary submits that the Crown is looking for evidence in respect of the circumstance of aggravation for which the consent of the Attorney-General is required and has not been given.  It is, in my view, not appropriate in the circumstances that consent be given to extend time for presenting an indictment for a charge which should never have been laid in the first place.  For those reasons, the application is refused.

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