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R v Boulle

R v Boulle

Case [2006] QSC 253 21 September 2006

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SUPREME COURT OF QUEENSLAND

CITATION: R v Boulle [2006] QSC 253
PARTIES: BOULLE, Aurelien Frederic
(Applicant/Respondent)
v
R
(Respondent/Applicant)
FILE NO: 357/06
DIVISION: Trial
PROCEEDING: Criminal application
ORIGINATING
COURT: Supreme Court
DELIVERED ON: 21 September 2006
DELIVERED AT: Brisbane
HEARING DATE: 14 August 2006
JUDGE: Fryberg J
ORDER:

1. Declare that indictment 357/06 presented in this Court on 5 May 2006 is void.
2. Grant the Crown leave to amend its application filed on 14 August 2006 in accordance with these reasons.
3. Dismiss the application filed by the Crown on 14 August 2006.
4. Order that A F Boulle be discharged.
CATCHWORDS: Criminal law – Jurisdiction, practice and procedure – Prosecution – Filing of indictment – Queensland – Ex officio indictment – Validity – Signature after formal notice of decision not to present – Normal indictment – Extension of time for presentation – Application after formal notice of decision not to present
Criminal law – Jurisdiction, practice and procedure – Prosecution – Finding of bill by grand jury – Queensland – History – No true bill – Effect of formal notice of decision not to present
Criminal law – Jurisdiction, practice and procedure – Prosecution – Other matters – Queensland – Discharge after expiry of time for presentation of indictment – Availability of order – After formal notice of decision not to present
Bail Act 1980 (Qld) s 36B
Criminal Code 1899 (Qld) s 560, s 561(2), s 590, s 590AA
Criminal Practice Rules r 20(6)
Supreme Court Act 1995 (Qld) s 205
R v Foley [2002] QCA 522; [2003] 2 Qd R 88, followed
R v Scott (1993) 42 FCR 1, considered
Vandermeer v The Queen [2003] QDC 026, considered
COUNSEL: D R Kent for the applicant
T A Fuller for the respondent
SOLICITORS: Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

FRYBERG J: To explain the significance of the relief sought in this application under s 590AA of the Criminal Code, it is of most assistance to begin by recounting the relevant events. The evidence before me, from which this history is gathered, consisted of paragraphs 1-3, 5-7, 9 and 10 of the outline of submissions on behalf of the applicant (exhibit 1), which were admitted by the Crown; certain statements of fact made by counsel for the Crown which were admitted by the applicant (transcript pp 58-9); copies of three letters sent on behalf of the Director of Public Prosecutions (exhibit 2); and an affidavit sworn by Glen Peter Cash, a Crown prosecutor.
Procedural history
On 8 September 2004 Aurelien Frederic Boulle was charged with unlawfully trafficking in the dangerous drug pseudoephedrine, unlawfully producing the dangerous drug methylamphetamine, two counts of possessing things for use in the commission of a drug crime (Telfast decongestant tablets and a medical prescription), 11 counts of fraud and one of attempted fraud. The fraud related offences involved obtaining prescriptions for pseudoephedrine. The use of these prescriptions formed the basis of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Boulle

Details

AGLC: R v Boulle [2006] QSC 253
Case: [2006] QSC 253
Decision Date: 21 September 2006

CaseChat Overview and Summary

The case of R v Boulle dealt with issues concerning the validity of an indictment and the Crown's decision to discontinue the prosecution. The matter was heard in the Queensland court where the Crown sought to present an indictment against the respondent, Boulle. The primary dispute revolved around whether the indictment could be validly presented after the Crown had decided not to prosecute and whether the Crown could extend the time for presentation of a normal indictment following a decision not to present an ex officio indictment.

The legal issues before the court were whether the Crown's decision to discontinue the prosecution resulted in the Crown being statute-barred from proceeding, and if so, whether the Crown could subsequently extend the time for presentation of a normal indictment. The court had to determine the effect of the Crown's decision to terminate the committal proceedings and whether it constituted a bar to further prosecution. Additionally, the court examined the validity of the indictment presented, specifically whether it was properly signed and whether it could be considered void.

The court concluded that the Crown was not statute-barred from proceeding as a result of its decision to discontinue the prosecution. The lis no longer existed because the Crown had terminated the matter by its own acts. However, the court found that the indictment presented was devoid of legal effect as it was not validly signed. The court decided that the indictment was void and dismissed the Crown's application. The Crown was granted leave to amend its application in accordance with the reasons given. The court ordered that Boulle be discharged from the proceedings.

The court's reasoning was grounded in the procedural requirements of the Code, emphasizing that the Crown could not proceed further because it had terminated the matter. The court also highlighted the importance of ensuring that the prosecution could present a valid indictment. The court ordered the indictment to be declared void and dismissed the application while allowing the Crown the opportunity to amend its application. Boulle was discharged from the proceedings, effectively ending the current legal action against him.

Orders

Orders of the court

Declare that indictment 357/06 presented in this Court on 5 May 2006 is void.

Grant the Crown leave to amend its application filed on 14 August 2006 in accordance with these reasons.

Dismiss the application filed by the Crown on 14 August 2006.

Order that A F Boulle be discharged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the present case the Crown has already terminated the consequences of the committal. The letters operated as a discharge. The application is therefore redundant. No order should be made on it. Conclusion Mr Fuller submitted that the foregoing outcome amounted to a finding that the Crown was statute barred from proceeding by its decision to discontinue the prosecution. Such an outcome found no support in the Code. It is not in my judgment correct to analyse the outcome as a finding that the Crown is statute barred from proceeding. No statute bars its way. It cannot proceed further because it has by its own acts terminated the matter. The lis no longer exists. In such circumstances the outcome is unsurprising. There is of course no bar to further committal proceedings. A decision not to prosecute does not make the matter res judicata. Moreover with the benefit of hindsight one can see that there is a degree of justice in requiring further committal proceedings if the prosecution is to continue. The evidence before the magistrate at the committal was incomplete. It did not demonstrate that Mr Boulle possessed ephedrine or a stereo-isomer of it. Had the point been raised the prosecution would have had to produce some evidence or the charge would have been dismissed. Mr Boulle was entitled to the opportunity to test that evidence if he wished to do so. The committal was apparently a full handup committal. There is no reason to suppose that a second committal proceeding would be any different unless Mr Boulle wishes to test the scientific evidence. He is entitled to do so if he wishes. On the other hand he will no doubt be advised of the sentence benefits which accrue to persons who consent to the presentation of an ex officio indictment to facilitate an early plea of guilty. He has the chance to display great willingness to cooperate in the administration of justice if he wishes to do so. Orders The form of order set out in Mr Boulle's application is taken from Foley. It refers to unlawful presentation of the indictment, which was what occurred in that case. In the present case the indictment is devoid of legal effect because it was not validly signed. I propose simply to make a declaration that it is void. The Crown has leave to amend its application in accordance with these reasons, but the application must be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Boulle [2006] QSC 253

Most Recent Citation

R. v D R C Potter [2010] QDC 1

Cases citing this decision · 6 of 6 shown

Shipton v South East Queensland Sport Aircraft Club Incorporated
[2022] QSC 5 Para 5

…ip for the following year. Nor did her Honour regard any of the matters to be of general importance, involving various incidents of her conduct. [13] [2006] QSC 253.…
R v HMM
[2018] QDC 206 Para 1

…the consequence of discharge from the operation or effects of the committal order: [13] R v Foley [2003] 2 Qd R 88 at [25], as followed in R v Boulle [2006] QSC 253 at [19]. [14]See: ss 590(4) & 696 of the Criminal Code; and r 20(6) of the Criminal Practice Rules 1999 ; and s 36B of the Bail Act 1980 . [15]Cf R v…
Michael Dudarec v The Queen
[2013] QDC 166 Para 2

…Q.B. 909: see per A.L. Smith, J. at p.914.”[33] [30]Given by Wolff CJ and concurred in by the other members of the court. [31]Cf: R v Boulle [2006] QSC 253 [32]In which case it would become the duty of a public Prosecutor (as duly authorised in that behalf) to undertake the prosecution on that bill. [33][1966] W…
Partridge v The Queen
[2012] QDC 284 Para 1

…ch he had been committed for trial but in respect of which an application under s. 590(2) had failed. In the circumstances subsisting in R v Boulle [2006] QSC 253 Fryberg J. at [22], did not think it material whether an application for extension had been made and refused.…
R v Ellis
[2010] QDC 533 Para 1

…on proceeds it should be cured; it matters that the court is able to see on the face of the indictment that count 1 is an ex officio indictment. [127][2006] QSC 253. [128]Ibid at [16].…
R. v D R C Potter
[2010] QDC 1 Para 17

…dictment against the defendant for any of the reasons stated in decisions such as Re Jenkin [1994] 1 Qd R 266, R v Foley (2003) 2 Qd R 88, R v Boulle [2006] QSC 253 and R v Ford [2006] QCA 440.…

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Cases cited in this decision · 14 of 14 shown

R v Janceski
[2005] NSWCCA 288 Para 1

…an ex officio indictment, it is unnecessary to do so. In any event, Mr Boulle does not make any point about the non-compliance. [2] See R v Janceski (2005) 64 NSWLR 10 at p 52, per Howie J.…
Director of Public Prosecutions v Crawford and Wortley
[2005] QDC 105 Para 20

…these circumstances I would have allowed the application on the merits. [48] I was referred to Director of Public Prosecutions v Crawford and Wortley [2005] QDC 105 and R v Palmer [2005] QDC 060 . Application for discharge…
R v Foley
[2002] QCA 522 Para 2

…n offence in respect of which a defendant has been committed for trial. In support of that proposition, he cites R v Foley .[3] [3] R v Foley [2002] QCA 522 ; [2003] 2 Qd R 88.…
R v Scott
[1993] FCA 576 Para 1

…act on the part of the Attorney-General or Director of Public Prosecutions to secure the release from custody of that person.”[31] [29] (1993) 42 FCR 1 . [30] At p 19. [31] At pp 23-4.…
Jago v District Court (NSW)
[1989] HCA 46 Para 9

…y presented is entitled to be discharged from the consequences of the committal. [43] Foley at pp 95-6. [44] Jago v District Court of New South Wales (1989) 168 CLR 23 at p 40 per Brennan J.…
Barton v the Queen
[1980] HCA 48 Para 3

…y the grand jury whose decisions were not subject to judicial review except for matters going to essential regularity.”[4] [4] Barton v The Queen (1980) 147 CLR 75 at p 94. R v Foley…
Davis v Gell
[1924] HCA 56 Para 9

…reman of the jury to hand a true bill to the clerk of the court: Stephen, ibid . See also R v Foley at p 92 n 6. [20] (1924) 35 CLR 275 at pp 286, 297. [21] Paragraph [26]. The position in Queensland…
Grassby v the Queen
[1989] HCA 45 Para 7

…the Laws of England , 15th ed (1809), vol 4, p 296. [11] Another purpose was to record and preserve the evidence. [12] Grassby v The Queen (1989) 168 CLR 1 at p 11. [13] Blackstone: op cit , p 301.…
Judge Robertson seemed to be in Vandermeer v R
[2003] QDC 026 Para 3

…x officio indictment could be presented. In support of that argument Mr Fuller cited the decision of Robertson DCJ in Vandermeer v The Queen .[7] [7] [2003] QDC 026 . Vandermeer v The Queen…
QDC 105 and R v Palmer
[2005] QDC 060 Para 20

…ve allowed the application on the merits. [48] I was referred to Director of Public Prosecutions v Crawford and Wortley [2005] QDC 105 and R v Palmer [2005] QDC 060 . Application for discharge…
Kielley v Carson
(1842) 4 Moo PC 63 Para 6

…anours other than those affecting the State or the Sovereign could be presented only after a grand jury had found a true bill.[38] [35] Compare Kielley v Carson (1842) 4 Moore 63; 13 ER 225. [36] See Grassby at p 14. Compare s 686 of the Criminal Code. [37] R v Webb [1960] Qd R 443 at p 446. [38] Ibid .…
Kielley v Carson
13 ER 225 Para 6

…e State or the Sovereign could be presented only after a grand jury had found a true bill.[38] [35] Compare Kielley v Carson (1842) 4 Moore 63; 13 ER 225. [36] See Grassby at p 14. Compare s 686 of the Criminal Code. [37] R v Webb [1960] Qd R 443 at p 446. [38] Ibid .…
(1612) 12 Co Rep 89
(1612) 12 Co Rep 89 Para 1

…endit aliquid impossible. That is, that the law does not require the performance of that which is impossible (see Fishing in the River Thames (1612) 12 Co Rep 89; 77 ER 1365; Davis v. Gell at 289). Where by the act of the Attorney-General or the Director of Public Prosecutions it has been put out of the power of an ac…
77 ER 1365
77 ER 1365 Para 1

…ble. That is, that the law does not require the performance of that which is impossible (see Fishing in the River Thames (1612) 12 Co Rep 89; 77 ER 1365; Davis v. Gell at 289). Where by the act of the Attorney-General or the Director of Public Prosecutions it has been put out of the power of an accused person…

Legislation cited in this decision · 10

Bail Act 1980 (Qld)
36B 2 mentions (from Para 2)
Justices Act 1886 (Qld)
108(1) 2 mentions (from Para 8)
Supreme Court Act 1995 (Qld)
205 2 mentions (from Para 5)
Australian Courts Act 1828 (Imp)
1 mention (from Para 6)
Director of Public Prosecutions Act 1990 (ACT)
1 mention (from Para 1)
Drugs Misuse Act 1986 (Qld)
1 mention (from Para 5)
Halliday v Nevill
1 mention (from Para 8)
Indictable Offences Act 1848 c.42
1 mention (from Para 8)
Justices Act 1850 (SA)
1 mention (from Para 8)
Supreme Court Act 1867 (SA)
1 mention (from Para 12)