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R v Ellis

R v Ellis

Case [2010] QDC 533 12 May 2010

Jurisdiction

Ex Officio Indictment

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DISTRICT COURT OF QUEENSLAND

CITATION:

R v Ellis [2010] QDC 533

PARTIES:

R

v

DAMIEN SCOTT ELLIS
(Applicant)

FILE NO/S:

Indictment No 2761 of 2008

DIVISION:

Trial

PROCEEDING:

Criminal application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2009; final written submissions received on 20 July 2009

JUDGE:

Irwin DCJ

ORDER:

Applications to stay and quash the indictment in respect of count 1 dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OF INDICTMENT – QUEENSLAND – EX OFFICIO INDICTMENT – AUTREFOIS CONVICT – MEANING OF “CONVICTION” – application to stay ex officio indictment on the basis of autrefois convict – where the applicant consented to being committed to the District Court for sentence on two offences under the Transport Operations (Marine Safety) Act 1994 without the magistrate being required to determine whether there was sufficient evidence to put him on trial for an indictable offence – where the committal order was noted on the transmission sheet and the applicant was required to sign a form which was said to effectively stop him changing his plea of guilty in the District Court – where an indictment was presented which included as count 1 a charge under the Criminal Code of dangerous operation of a vehicle causing death and grievous bodily harm arising from the same facts together with an alternative count 2 which reflected the two offences on which he was committed for sentence – where so far as count 1 was concerned this was an ex officio indictment – whether the committal of the applicant for sentence together with the note on the transmission sheet and the requirement to sign the form involved a summary conviction of the two offences under the Transport Operations (Marine Safety) Act 1994, which by virtue of count 2 of the indictment had the result the applicant had already been convicted of an offence of which he might be convicted upon the indictment with which he was charged – whether as a result s 17 of the Criminal Code applied so that he had the defence of autrefois convict to count 1

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OF INDICTMENT – QUEENSLAND – EX OFFICIO INDICTMENT – application to quash ex officio indictment as formally defective on the basis it was not presented by a crown law officer – where the applicant consented to being committed to the District Court for sentence on two offences under the Transport Operations (Marine Safety) Act 1994 without the magistrate being required to determine whether there was sufficient evidence to put him on trial for an indictable offence – where an indictment signed by a Crown prosecutor was presented which included as count 1 a charge under the Criminal Code of dangerous operation of a vehicle causing death or grievous bodily harm arising from the same facts together with an alternative count 2 which…

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 Ellis

Details

AGLC: R v Ellis [2010] QDC 533
Case: [2010] QDC 533
Decision Date: 12 May 2010

CaseChat Overview and Summary

The case of R v Ellis involved the applicant, who had been committed to the District Court for sentence on two offences under the Transport Operations (Marine Safety) Act 1994. The applicant consented to the committal without requiring the magistrate to determine if there was sufficient evidence to put him on trial for an indictable offence. An indictment was subsequently presented, which included a charge of dangerous operation of a vehicle causing death and grievous bodily harm, among other counts. The applicant applied to stay and quash the indictment, arguing that it was an ex officio indictment and that the applicant had already been convicted of an offence that he might be convicted of upon the indictment with which he was charged. The applicant sought to assert the defence of autrefois convict.

The legal issues before the court were whether the committal for sentence and the requirement to sign a form constituted a summary conviction of the two offences under the Transport Operations (Marine Safety) Act 1994, and if so, whether this resulted in the applicant being precluded from being tried for the indictable offence of dangerous operation of a vehicle. The court also needed to determine whether the indictment was formally defective because it was not presented by a Crown law officer, and whether a Crown prosecutor could validly sign and present the indictment.

The court dismissed the applications to stay and quash the indictment. It found that the applicant’s consent to be committed for sentence did not constitute a conviction that would preclude him from being tried for the indictable offence. The court held that the requirement to sign a form did not amount to a conviction, and therefore the applicant could not rely on the defence of autrefois convict. The court also determined that the indictment was not formally defective, as the Crown prosecutor had the authority to sign and present it, even though it was an ex officio indictment. The applications were dismissed, and the indictment was upheld.

Orders

Orders of the court

Applications to stay and quash the indictment in respect of count 1 dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Ellis [2010] QDC 533

Most Recent Citation

R v C, G [2013] SASCFC 83

Cases citing this decision · 1 of 1 shown

R v C, G
[2013] SASCFC 83 Para 19

…5] AC 421 at 444 per Lord Wilberforce. [31] R v M, BJ (2011) 110 SASR 1. [32] R v M, BJ (2011) 110 SASR 1, 12. See also R v Ellis (2010) 107 SASR 94, 105-107 per Sulan J (Duggan J agreeing), 120 per Kourakis J.…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

Gibson v Canniffe
[2008] QDC 319 Para 1

…Further, he submits that “order” was widely defined in Gibson v Canniffe & Ors.[33] [33][2008] QDC 319. Reference is also made to Marchetti v Williams [2008] QDC 75.…
Stritch v Farrugia
[2008] QDC 228 Para 1

…court to be sentenced once the court has accepted the guilty verdict or plea by administering the allocutus ”; and Stritch v Farrugia [2008] QDC 228 per Forde DCJ at [13]. [104][1976] 2 NZLR 517 at 519-520. [105](2000) 177 ALR 300 at 304 [12].…
Marchetti v Williams
[2008] QDC 75 Para 1

…er, he submits that “order” was widely defined in Gibson v Canniffe & Ors.[33] [33][2008] QDC 319. Reference is also made to Marchetti v Williams [2008] QDC 75.…
R v Boulle
[2006] QSC 253 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 Foley
[2002] QCA 522 Para 1

…f the general principles associated with ex officio indictments in R v Foley[72] where the Queensland Court of Appeal said:[73] [72][2003] 2 Qd R 88; [2002] QCA 522. [73]Ibid at 96; [25]-[26].…
R v Harker
[2002] QSC 61 Para 1

…Ms Bain relies on the decision of McKenzie J in R v Harker [65]for the proposition there is a very wide power to present ex officio indictments. [65][2002] QSC 61. Although I note that in R v Foley [2003] Qd R 88 at 87; [2002] QCA 552 at [27], footnote 21, the court stated it would not follow this decision in wh…
Hinton v The Queen
[2000] FCA 1019 Para 1

…y administering the allocutus ”; and Stritch v Farrugia [2008] QDC 228 per Forde DCJ at [13]. [104][1976] 2 NZLR 517 at 519-520. [105](2000) 177 ALR 300 at 304 [12].…
Maxwell v The Queen
[1996] HCA 46 Para 1

…, until the court at first instance has entered a judgment upon that verdict, by for example, recording a conviction.[30] [24](1996) 184 CLR 501. [25]Ibid, at 508 per Dawson and McHugh JJ, with reference to R v Tonks and Goss [1963] VR 121 at 127-128; R v Jerome and McMahon [1964] Qd R 595 at 604. [26]Ibid, at 509 pe…
Lamb v Moss
[1983] FCA 254 Para 1

…Committing magistrates are performing an administrative and not a judicial function.[109] [109] Lamb v Moss (1983) 49 ALR 553; R v Grassby (1998) 15 NSWLR 109 at 118; Gibson v Canniffe & Ors [2008] QDC 319 at [34].…
Barton v the Queen
[1980] HCA 48 Para 1

…ecision not to consent to the charges being dealt with summarily, and appearing at the committal. [125]As recognised in Barton v The Queen [1980] 147 CLR 75 per Wilson J at 113: “The Attorney-General or Crown prosecutor will seldom control the institution or conduct of committal proceedings. In most cases the…
Cobiac v Liddy
[1969] HCA 26

…“Conviction on indictment is generally speaking, the equivalent of judgment in civil proceedings: see Cobiac v Liddy (1969) 119 CLR 257, 270-273; and, taken by itself, neither verdict nor plea of guilty ordinarily constitutes a conviction until it is accepted by the court, which is most often manifested by administer…
Griffiths v The Queen
[1977] HCA 44

…s 43 Barton v The Queen [1980] 147 CLR 75, cited Gibson v Cannife & Ors [2008] QDC 319, applied Griffiths v The Queen (1977) 137 CLR 293, cited Hinton v R (2000) 177 ALR 303, considered Lamb v Moss (1983) 49 ALR 553, applied Marchetti v Williams [2008] QDC 75, cited Maxwell v The Queen (1996) 184 CLR 501, applied R v Boulle [2…
[2002] QCA 552
[2002] QCA 552 Para 1

…so see s 561(3)).[43] [42]Further Outline of Submissions on behalf of the applicant, 26 June 2009, [17]. The decision was R v Foley [2008] 2 Qd R 88; [2002] QCA 552. [43]Ibid, [19].…
[1971] AC 481
[1971] AC 481

…ord probably leads to some confusion as to when the accused person can be regarded as having been convicted: see S v Recorder of Manchester [1971] AC 481, 489; [1969] All ER 1230, 1232. Nevertheless, once accepted by the judge it is that verdict that amounts to a conviction and the case is then beyond further ex…
[1937] 1 KB 223
[1937] 1 KB 223 Para 1

…sed by the full Court of the Supreme Court of Victoria in R v Tonks and Goss [121] as follows: [118](1936) 26 Cr App Rep.8 [1936] 2 All ER 1156. [119][1937] 1 KB 223; [1936] 2 All ER 883. [120][1938] 1 All ER 529. [121][1963] VR 121 at 126.…
[1993] AC 217
[1993] AC 217

…lied R v Viers [1983] 2 Qd R 1, cited R v Webb [1960] Qd R 443, considered Richards v The Queen [1993] AC 217, cited Stritch v Farrugia [2008] QDC 228 , cited COUNSEL: P E Smith for the applicant S G Bain for the respondent SOLICITORS: Gilshenan & Luton for the applicant Director of Public Prosecutions (Queensla…
[1976] 2 NZLR 517
[1976] 2 NZLR 517 Para 1

…f the New Zealand Court of Appeal in R v Sorby[61] and the High Court of Australia in Maxwell v The Queen[62] as to what amounts to a conviction. [61][1976] 2 NZLR 517. [62](1996) 184 CLR 501.…
(1996) AC217
(1996) AC217 Para 1

…autrefois convict is to prevent duplication of punishment and that, for the application of the doctrine, finality of adjudication is essential. [124](1996) AC217.…

Legislation cited in this decision · 7

Transport Operations (Marine Safety) Act 1994 (Qld)
43, 43(3) 3 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
14B(1) 2 mentions (from Para 1)
Criminal Proceeds Confiscation Act 2002 (Qld)
305 2 mentions (from Para 1)
Justices Act 1886 (Qld)
4 2 mentions (from Para 1)
Criminal Practice Rules 1999 (Qld)
20(2) 1 mention
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 1)
Justices Act Amendment Act 1964 (WA)
45 1 mention

CITATION:	R v Ellis [2010] QDC 533
PARTIES:	R v DAMIEN SCOTT ELLIS (Applicant)
FILE NO/S:	Indictment No 2761 of 2008
DIVISION:	Trial
PROCEEDING:	Criminal application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	12 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2009; final written submissions received on 20 July 2009
JUDGE:	Irwin DCJ
ORDER:	Applications to stay and quash the indictment in respect of count 1 dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OF INDICTMENT – QUEENSLAND – EX OFFICIO INDICTMENT – AUTREFOIS CONVICT – MEANING OF “CONVICTION” – application to stay ex officio indictment on the basis of autrefois convict – where the applicant consented to being committed to the District Court for sentence on two offences under the Transport Operations (Marine Safety) Act 1994 without the magistrate being required to determine whether there was sufficient evidence to put him on trial for an indictable offence – where the committal order was noted on the transmission sheet and the applicant was required to sign a form which was said to effectively stop him changing his plea of guilty in the District Court – where an indictment was presented which included as count 1 a charge under the Criminal Code of dangerous operation of a vehicle causing death and grievous bodily harm arising from the same facts together with an alternative count 2 which reflected the two offences on which he was committed for sentence – where so far as count 1 was concerned this was an ex officio indictment – whether the committal of the applicant for sentence together with the note on the transmission sheet and the requirement to sign the form involved a summary conviction of the two offences under the Transport Operations (Marine Safety) Act 1994, which by virtue of count 2 of the indictment had the result the applicant had already been convicted of an offence of which he might be convicted upon the indictment with which he was charged – whether as a result s 17 of the Criminal Code applied so that he had the defence of autrefois convict to count 1 CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – PROSECUTION – FILING OF INFORMATION, PRESENTMENT OF INDICTMENT – QUEENSLAND – EX OFFICIO INDICTMENT – application to quash ex officio indictment as formally defective on the basis it was not presented by a crown law officer – where the applicant consented to being committed to the District Court for sentence on two offences under the Transport Operations (Marine Safety) Act 1994 without the magistrate being required to determine whether there was sufficient evidence to put him on trial for an indictable offence – where an indictment signed by a Crown prosecutor was presented which included as count 1 a charge under the Criminal Code of dangerous operation of a vehicle causing death or grievous bodily harm arising from the same facts together with an alternative count 2 which…