R v DF (No 2)
[2012] ACTSC 3
•31 January 2012
R v DF (No 2)
[2012] ACTSC 3 (31 January 2012)
CRIMINAL LAW – jurisdiction, practice and procedure – information, indictment or presentment – filing multiple indictments – procedure to be followed – need to file a nolle prosequi in respect of the indictment not being prosecuted.
CRIMINAL LAW – jurisdiction, practice and procedure – form of trial – election for trial by judge alone – whether election negated by filing of fresh indictment.
Crimes Act 1900 (ACT), ss 61, 92K, 92J, 281
Court Procedures Rules 2006 (ACT), rr 4733, 4750, Divs 4.3.2, 4.3.4
Supreme Court Act 1933 (ACT), s 68B
Crimes Act 1900 (NSW), s 395
Director of Public Prosecutions Act 1990 (ACT), s 7
Legislation Act 2001 (ACT), ss 84, 102, 108, 114, 116, 117
Criminal Procedure Act 1986 (NSW), s 153
Crimes (Amendment) Ordinance (No 5) 1985 (Cth)
Crimes Legislation Amendment Act 2001 (ACT), s 43
Bail Act 1992 (ACT), ss 12B, 20B
Oxford English Dictionary (1991)
Weininger v The Queen (2003) 212 CLR 629
R v DF [2010] ACTSC 31
DF v The Queen [2011] ACTCA 11
Radley (1973) 58 Cr App R 394
Cicchino (1991) 54 A Crim R 358
R v Nicolaides (1994) 33 NSWLR 364
Jago v District Court of New South Wales (1989) 168 CLR 23
Crane v Director of Public Prosecutions [1921] 2 AC 299
Munday v Gill (1930) 44 CLR 38
R v Landy [1943] VLR 73
R v Swansson; R v Henry (2007) 69 NSWLR
Kelly v The King (1923) 32 CLR 509
R v Derrick and Ors (1984) 70 FLR 320
R v Harris and Ors (No 2) [1990] VR 305
R v Howard (1992) 29 NSWLR 242
R v Hiep (2000) 155 FCR 228
R v Sneesky [1951] St R Qd 26
R v Economou (1989) 51 SASR 421
Miller v Baker (1995) 5 Tas R 322
Esber v Commonwealth (1992) 174 CLR 430
R v Mustafa (1973) 3 DCR 154
W v The Queen (2001) 115 FCR 41
R v Fearnside (2009) 3 ACTLR 25
R v Tran (2002) 167 FLR 345
R v Rushton [1967] VR 842
R v Evans [1964] VR 717
Lane v The Queen (1996) 66 FCR 144
R v Thompson; R v Clein [1975] 1 WLR 1425
No. SCC 14 of 2008
Judge: Refshauge J
Supreme Court of the ACT
Date: 31 January 2012
IN THE SUPREME COURT OF THE )
) No. SCC 14 of 2008
AUSTRALIAN CAPITAL TERRITORY )
R
V
DF
ORDER
Judge: Refshauge J
Date: 31 January 2012
Place: Canberra
THE COURT ORDERS THAT:
A Notice Declining to Proceed with the Prosecution of the indictment dated 14 November 2011 be filed.
This was a trial by judge alone of one count alleging that DF, between 1 and 31 January 1987, committed an act of indecency upon the complainant who was then 15 years old, an offence contrary to s 92K of the Crimes Act 1900 (ACT), as it stood at January 1987. At the beginning of the trial, an issue arose as to the indictment and mode of trial.
A little history is necessary to understand the issue.
Proceedings
DF was charged on 20 June 2007 with the offence referred to above (at [1]) and also of committing, between 21 and 30 March 1987, an act of indecency upon the complainant, without her consent and knowing she did not consent, an offence under s 92J(1) of the Crimes Act, as it stood at March 1987.
On 14 January 2008, DF was committed for trial to this court. After the usual preliminary matters (see r 4733 of the Court Procedures Rules 2006 (ACT)), an indictment was filed on 7 April 2008 containing these counts.
On 16 May 2008, DF filed an election for trial by judge alone under s 68B of the Supreme Court Act 1933 (ACT). He was arraigned on 11 November 2008 and a date set for the trial. That trial was conducted on 1 to 3 and 30 June, 27 August and 28 September 2009 and the Learned Trial Judge reserved her decision.
On 15 April 2010, her Honour convicted DF of the first count on the indictment and acquitted him of the second count: R v DF [2010] ACTSC 31.
DF then appealed to the ACT Court of Appeal against the conviction. On 23 June 2011, the Court of Appeal upheld the appeal and ordered a new trial: DF v The Queen [2011] ACTCA 11.
Because the indictment on which DF had been arraigned contained a count on which he had been acquitted, the Director of Public Prosecutions prepared a fresh indictment which contained only one count, the first count on the indictment on which DF had been originally tried, but with some minor, and desirable, improvements to the wording of the count.
At the beginning of the trial, the Crown sought to “withdraw” the indictment on which DF had originally been tried and to have him arraigned on the fresh indictment, dated 14 November 2011.
Mr J Sabharwal, who appeared for DF, demurred on the basis that it was unnecessary and may have consequences for the mode of trial. It is correct that, DF having been arraigned, it was not necessary for him to be re-arraigned in the case of a judge alone trial. Where the trial is by jury, the accused is commonly re-arraigned before the whole jury panel so that the members of the panel understand what the charge is or the charges are. This enables them to seek to be excused if the arraignment shows any member of the panel some reason for doing so. It also brings into operation the provisions of s 281 of the Crimes Act 1900 (ACT), which means that the arraignment has very publicly put the accused on his or her country for trial and requires the trial to proceed.
That this often amounts to a second arraignment is of no consequence, for a second arraignment is quite permissible: Radley (1973) 58 Cr App R 394 (at 404); Cicchino (1991) 54 A Crim R 358 (at 363); R v Nicolaides (1994) 33 NSWLR 364 (at 367).
The difficulties that the accused’s counsel saw depend on some statutory provisions and recent amendments to them.
Legislation context
On 6 September 1993, s 68B was inserted into the Supreme Court Act as follows:
68B(1) An accused person in criminal proceedings shall be tried by a Judge alone if –
(a)the accused person elects in writing to undergo such a trial;
(b)the accused person produces a certificate signed by a barrister or solicitor stating that –
(i)he or she has advised the accused in relation to the election;
and
(ii)the accused person has made the election freely;
(c)the election is made before the Court first allocates a date for the person’s trial; and
(d)where there is more than 1 accused person in the proceedings –
(i)each other accused person also elects to be tried by the Judge alone; and
(ii)each accused person’s election is made in respect of all offences with which he or she is charged.
(2)An accused person who elects to be tried by a Judge alone may, at any time before he or she is arraigned, elect to be tried by a jury.
(3)If an accused person makes and then withdraws an election, he or she shall not make another election.
A minor amendment was made on 1 December 1997 to replace “barrister and solicitor” with “legal practitioner”. Otherwise, the provision remained unaltered until 7 July 2011, when significant and relevant amendments were made to exclude from those offences, in respect of which an election could be made by an accused person for trial by judge alone, certain offences described in the Presentation Speech of 17 February 2011 to the amending Bill as “allegations of a sexual nature, including allegations relating to child pornography, and allegations involving the death of a person, including murder and manslaughter in particular”.
The risk of concern to both counsel was that an arraignment on the fresh indictment would bring these amendments into play and mean that the existing election for trial by judge alone was of no effect. This would require the trial to be conducted with a jury.
Procedural problems
There were, however, some procedural problems that the Crown faced in proceeding in the way it sought to do.
As DF had been arraigned on the earlier indictment, it seemed to me that he had to be tried on that indictment. This is what s 281 of the Crimes Act provides. It also accords with what Brennan J said in Jago v District Court of New South Wales (1989) 168 CLR 23 (at 38-9). There cannot be two or more indictments in respect of any one trial: Crane v Director of Public Prosecutions [1921] 2 AC 299; Munday v Gill (1930) 44 CLR 38 (at 54-7; 75-6, 86- 8); R v Landy [1943] VLR 73 (at 75); R v Swansson; R v Henry (2007) 69 NSWLR 406 (at 409-12; [11] to [35]). The Crown may, however, proceed on an indictment different to that originally presented: Kelly v The King (1923) 32 CLR 509 (at 517). Whether that can be done where an earlier indictment has been quashed (which was doubted in R v Derrick and Ors (1984) 70 FLR 320) is not presently relevant.
Thus, were the Crown to wish to proceed on the fresh indictment, it would be necessary for the issue of the earlier indictment to be addressed. There is no clear line of authority as to what to do with it, though it seems to me that guidance is available from the authorities.
In R v Harris and Ors (No 2) [1990] VR 305, Ormiston J held (at 306) that there was no prohibition on the Crown laying or filing a second indictment before arraignment and that leave to do so was not required. His Honour held, however, that “certain other steps should be taken by either the prosecution or the court”.
His Honour then considered various authorities and various options. His Honour considered (at 308) that the Crown had to elect on which indictment it was proposed to proceed. His Honour then considered that the procedural response of filing a nolle prosequi in respect of the indictment that was not to proceed was, his Honour considered, unsatisfactory in that case, though, noting that “in certain circumstances that would be sufficient”.
His Honour also considered the option, proffered by the Crown, that the two indictments simply remain on the file and that the trial proceed on the later indictment upon the Crown’s undertaking that (at 308):
... if the accused were acquitted on the present new indictment, then he would not proceed on the first indictment, and that if they were found guilty he would undertake, after all the processes of appeal had been exhausted and all times for appeal had gone by, likewise not to proceed on the first indictment.
His Honour’s opinion was that this procedure was also unsatisfactory.
Ultimately, his Honour considered (at 309) that, when the Crown elects on which indictment to proceed, the court should order that the other indictment be permanently stayed.
That decision, however, is not directly in point, for the two indictments were filed before arraignment
In R v Howard (1992) 29 NSWLR 242, the NSW Court of Criminal Appeal had to consider a similar situation to that confronting me. There, an indictment for manslaughter was presented, the accused was arraigned and unexpectedly pleaded not guilty. Subsequently the Crown laid an indictment for murder at the subsequent trial and the accused challenged the Crown’s right to do so.
The Court there held (at 248) that, as the accused had been arraigned on the earlier indictment, the trial was required to proceed, relying on s 395 of the Crimes Act 1900 (NSW), the equivalent provision to s 281 of the Crimes Act, subject to action to bring that prosecution to an end. The Court there said (at 248):
Leaving to one side the possibility of amending the indictment, (which never occurred in the present case), the proper way to bring to an end the proceedings on the charge of manslaughter, thereby clearing the way for the charge of murder, was by means of the entry of a nolle prosequi or by the taking of some legally equivalent step.
In that case, the Court was prepared to infer that the laying of a charge of murder was of such moment that the Director of Public Prosecutions who, unlike a Crown Prosecutor, was able to direct that no further proceedings be taken in respect of a person who had been committed for trial, must have been involved in the decision to charge the accused with murder and, therefore, must have given the necessary authority to “withdraw” the charge of manslaughter and “substitute” the charge of murder. The Court held (at 250) the corollary of that decision was that “no further proceedings would be taken [in respect of the manslaughter charge]”.
The Court did hold, however, that the reference to “withdrawing the charge of manslaughter and substituting a charge of murder” was “technically inaccurate language” and the appropriate terms were those in the relevant legislation, namely that there be no further proceedings on the indictment for manslaughter.
Finally, in R v Hiep (2000) 155 FLR 228, Crispin J, in this Court, was asked to consider whether, after a trial had commenced but where the jury was discharged without returning a verdict, the Crown could present a fresh indictment and “withdraw” the one on which the accused had been arraigned and in respect of which the trial had been conducted. The first indictment contained four counts; the fresh indictment contained only two of them, similar to this situation.
The accused’s counsel in that case objected to that course, submitting that, were the Crown not wishing to proceed with the indictment, then the accused was entitled to an acquittal. While not referred to by his Honour, that was clearly an untenable submission in the light of authorities such as R v Sneesby [1951] St R Qd 26 (at 30) and R v Economou (1989) 51 SASR 421 (at 425).
His Honour noted that counsel had referred to no authority and his Honour referred to none. His Honour, of course, had had a distinguished career at the Bar, appearing in a number of significant criminal cases, and had been the first ACT Director of Public Prosecutions.
His Honour concluded that “an indictment cannot simply be withdrawn once a trial has commenced”, though that may not accord with authority if “withdraw” is, as appears in R v Howard, to equate to the entering of a nolle prosequi. His Honour continued (at [2]) that:
... if the jury is discharged without rendering a verdict then that trial has been concluded. Thereafter the indictment may remain on foot and continue to enliven the jurisdiction of the court but, in my view, the court may give leave for it to be withdrawn or amended if appropriate.
His Honour then referred to the comparative protection to an accused of an acquittal, which founds a plea of autrefois acquit, compared with the termination of a prosecution by entry of a nolle prosequi, noting (at [4]) that:
[a] decision to withdraw charges or resolve them by means of a nolle prosequi does not provide the same protection. However such decisions are frequently made prior to the presentation of an indictment and I do not accept that the mere fact that an indictment has been presented necessarily entitles an accused who has been the subject of an incomplete or inconclusive trial to greater protection. In an appropriate case it may be possible to prevent any unfair prejudice by staying the presentation of a subsequent indictment on the ground that it would constitute an abuse of process.
His Honour further noted that the Crown undertook not to “initiate any further prosecution in relation to ... the first two counts”, reminiscent of the offer made in R v Harris and Ors (No 2) set out above (at [21]).
Ultimately, his Honour’s order was (at [6]):
I granted leave for the Crown to withdraw the former indictment. Had I taken the view that there was no power to grant leave for the indictment to be withdrawn I would have granted the Crown leave to amend the indictment by omitting the first and second counts.
The approach taken by his Honour is broadly consistent with that in R v Howard. The language of his Honour is, perhaps, that described by the NSW Court of Criminal Appeal as “technically inaccurate”. As O’Leary J held in R v Derrick and Ors (at 321), the use of the term “withdraw” is in reality an application to quash an indictment. That may have consequences set out in that case, which re-inforces the appropriateness of the use of the statutory formula of declining to proceed.
As noted in R v Howard, the two approaches may “upon analysis”, come down to the same point. After all, as noted in Miller v Baker (1995) 5 Tas R 322 (at 327), the Oxford English Dictionary (1991) defines “withdraw” as, inter alia, “to refrain from proceeding with or prosecuting (a course of action)” (definition 3d.).
With respect to his Honour, it seems to me that, as suggested in R v Howard, it is preferable to use the relevant statutory language, in this jurisdiction as found in s 7(6) of the Director of Public Prosecutions Act 1990 (ACT), namely:
Where a person is under commitment or has been indicted for an indictable offence, the Attorney-General or the director may decline to proceed further in the prosecution of the offence and may cause the prosecution to be brought to an end.
In this case, the offence charged in the first count on the earlier indictment is the same offence as in the only count in the fresh indictment. I do not consider that this changes the situation. What is terminated is the prosecution, that is the proceeding for the offence on the indictment. That another prosecution is pending for the same offence is not affected by the declining to proceed further with the other prosecution.
In this case, the Director agreed to proceed with the earlier indictment. I did not at the time formally require that a Notice Declining to Proceed be filed in respect of the charge in the fresh indictment, but will do so to make the position clear and the record accurate.
Had the Director insisted on proceeding with the fresh indictment, I would have required a Notice to be filed in respect of the remaining charge in the earlier indictment. That may, however, have raised an issue as to whether the fresh indictment was an abuse of process, for it may have had the effect of negating the election already made by DF for a trial by judge alone.
This would, in my view, have deprived DF of a right that he had gained by the election through s 68B of the Supreme Court Act. That it is not expressed in that section in terms of a right is not to the point. The section provides that the person elects and then the proceedings “shall be tried by a Judge alone”. This combination, of a choice by the accused and a mandatory procedure to follow, is, in my view, the expression of a right to trial by judge alone once the election is properly made.
In this case, the election having been made, it would, in my view, survive the amendment to the section. Although it is a procedural amendment, the election has accrued a right to the accused. That is preserved under s 84(1)(c) of the Legislation Act 2001 (ACT), which provides that an amendment of a law does not affect an existing right accrued under the law. See, for example, Esber v Commonwealth (1992) 174 CLR 430 (at 440).
The termination of the proceedings by filing a Notice Declining to Proceed is rather like the situation where a plea of guilty is entered to one or more counts on an indictment containing multiple counts, more than those to which the plea has been made, and the Crown accepts the plea or pleas “in full satisfaction of the indictment”. This procedure was questioned by Thorley DCJ in R v Mustafa (1973) 3 DCR 154 (at 158-9). In some jurisdictions these matters are, to some extent, regulated as, for example, by s 153 of the Criminal Procedure Act 1986 (NSW).
It seems to me that, accepting a plea of guilty to one or some counts “in full satisfaction” of the indictment is equivalent to declining to proceed further in the prosecution of the other offences. The inference is the same, in principle, as that drawn by the Court in R v Howard. If that is so, there is much to be said for the Crown actually being required to file a Notice Declining to Proceed in respect of the remaining offences. I regularly require the Crown to do so in those circumstances and will, in the light of these reasons, continue to do so.
Was there a risk of the election being negated?
Had the fresh indictment been that on which the Crown was to proceed, the risk of prejudice to the accused was that it may have taken away the right of DF which his election gave him to have the trial conducted by a judge alone.
The definition, inserted by the 2011 amendment to s 68B of the Supreme Court Act, of “excluded offence”, namely those for which no election could be made, was by reference to offences against provisions specified in a schedule also inserted into the Act.
Thus, the relevant provision in the schedule was specified to be s 61 of the Crimes Act. A provision in the terms now appearing as s 61 was originally inserted as s 92K into the Crimes Act in 1985 by the Crimes (Amendment) Ordinance (No 5) 1985 (Cth), commencing on 28 November 1985.
It was renumbered as s 61 when republished as Republication No 9 (see s 108 of the Legislation Act) by virtue of s 43 of the Crimes Legislation Amendment Act 2001 (ACT). Such renumbering is undertaken under s 116(1)(e) of the Legislation Act, which provides for the ambit of editorial amendments that parliamentary counsel may make when, under s 114, preparing a republication. Such editorial amendments have, under s 117, effect for all purposes, “as if the amendment had been made by an Act.”
The provision under which DF was charged was, as noted above, s 92K of the Crimes Act and not s 61. It is, however, in identical terms to the provision now appearing as
s 61.
Section 102(2)(a) of the Legislation Act, provides:
In an ACT law, a reference to a provision of a law includes a reference to the following:
(a)the provision as originally made, and as amended from time to time since it was originally made.
This, in my view, is apt to include s 92K in the reference to s 61 of the Crimes Act. Thus, an offence against s 92K would be, for the purposes of s 68B of the Supreme Court Act, an excluded offence, one for which an accused could not elect for trial by judge alone.
Nevertheless, an election for trial by judge alone is made in respect of “criminal proceedings.” These are defined in the Dictionary to the Supreme Court Act, as “proceedings in the court for the prosecution of a person on indictment”. It has been held in W v The Queen (2001) 115 FCR 41 (at 64; [69]) that, until an indictment is filed, there are no criminal proceedings in the Court. See also R v Fearnside (2009) 3 ACTLR 25 (at 42; [69]).
That does not directly assist in the resolution of the issue. I note, however, in R v Tran (2002) 167 FLR 345, consideration was given to some issues with which I am now concerned.
In particular, the Court there noted (at 348; [33] to [38]) the very limited jurisdiction of the court before the formal presentation of the indictment which, I note may be effected by filing in court. See, for example, R v Rushton [1967] VR 842 (at 845); R v Evans [1964] VR 717 (at 722). This is clear from the definition of “indictment” in the Dictionary to the Supreme Court Act.
There are, of course, some statutory provisions, such as s 20B with s 12B of the Bail Act 1992 (ACT), and Divs 4.3.2 and 4.3.4 and r 4750 of the Court Procedures Rules which give the Court jurisdiction before the indictment is filed.
It has been held that the hearing of proceedings, that is the trial, commences upon arraignment: Lane v The Queen (1996) 66 FCR 144 (at 145). Whether that strictly still applies where arraignment occurs well prior to the actual empanelment of the jury, the opening by the Crown and the calling of evidence is a matter for another day. If this is so, however, it would provide in this case, a ground for refusing to entertain the fresh indictment: R v Hiep (at 228).
In R v Tran, the Court there held (at 351; [61]), that the quashing of the trial by a court of appeal meant that the trial had been “defective”. The Court continued (at [62]):
Being a new trial, this accused is in the same position as if an indictment has been presented or filed and he has been arraigned but no date for a trial has yet been set.
Applying this reasoning, the fresh indictment would institute new proceedings. No date had then been set for the trial on the fresh indictment. In this case, however, as at the date of filing the fresh indictment, the entitlement of DF to elect for trial by judge alone in respect of that indictment was excluded. At that date, the amendment to s 68B of the Supreme Court Act had been made and excluded an election in respect of the offence charged in the fresh indictment.
In R v Fearnside, Penfold J considered (at 30-1; [13] to [19]), a range of events which may, applying the principles in R v Tran, permit an accused to make an election, notwithstanding that a trial date has already been set.
I note that the reasoning in R v Tran has been doubted. See R v Fearnside (at 43; [71]). That is not a matter which I have to consider.
Part of the difficulty is that there is no clarity about these issues. I have for a number of years urged the enactment in this Territory of a comprehensive criminal procedure statute that could codify criminal procedure and address these issues. This case shows that that call is still very relevant and would help resolve such issues.
In principle, it seems to me that if, as is clear on authority, a criminal proceeding commences with the filing of an indictment, then the filing of a fresh indictment, unlike the amendment of an existing indictment, commences fresh proceedings. While, as in this case, the fresh indictment is actually filed on the same court file as the earlier indictment is not to the point. Court files do not normally determine the boundaries of proceedings. It has been held, however, that only one indictment can be presented (or filed) based on a committal proceeding: R v Thompson; R v Clein [1975] 1 WLR 1425 (at 1429). That decision, however, may have been based on specific legislative provisions.
That does raise other issues. For example, if counts on an indictment are severed, it is not clear whether the result is that two fresh indictments are created or one continuing indictment and one fresh indictment with the severed charges. This may, in the light of the amendments to s 68B of the Supreme Court Act mean that, though like charges are preferred in the new indictment or the second indictment (depending on which approach is taken) this may result in the loss of an election for trial by judge alone even though the election was made prior to the severance application. I do not need to consider this further.
The resolution of that issue may be that the date of committal is the time when the right accrues to an accused to elect for trial by judge alone. This would preserve the election from the effect of the amendments. See my comments above (at [43]).
In any event, none of these issues arise for determination in these proceedings, save that the fresh indictment needs to be addressed and I will make the appropriate order for that to be done.
Conclusion
In the circumstances, I consider that the Crown should file a Notice Declining to Proceed with the Prosecution of the indictment dated 14 November 2011. I shall so order. If the Crown declines to file such a Notice, the Court should permanently stay that indictment.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 31 January 2011
Counsel for the Crown: Ms M Moss
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr J Sabharwal
Solicitor for the defendant: Howes Kaye Halpin
Date of hearing: 28, 29 and 30 November 2011
Date of judgment: 31 January 2012
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