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R v Foley

R v Foley

Case [2002] QCA 522 29 November 2002

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Foley [2002] QCA 522

PARTIES:

R
v
FOLEY, Clayte Terrance
(applicant)

FILE NO/S:

Appeal No 4007 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Removal or Remission

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

29 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

23 September 2002

JUDGES:

de Jersey CJ, Davies JA and Jones J
Judgment of the Court

ORDER:

Declare:
1. that the indictment signed by the Director of Public Prosecutions on 5 February 2002 has not been presented;
2. that no ex officio indictment may be presented charging the applicant with the offence the subject of the indictment referred to in 1.

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - FILING OF INFORMATION, PRESENTMENT OR INDICTMENT - QUEENSLAND - where a clerk in the Office of the Director of Public Prosecutions purported to present an indictment - whether the indictment was presented by a person who was authorized to do so

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - FILING OF INFORMATION, PRESENTMENT OR INDICTMENT - QUEENSLAND - where the applicant was committed for trial and the Crown did not present an indictment within six months - where an application for an extension of time within which to present an indictment was refused - whether the Crown could now present an ex officio indictment charging the applicant with the offence for which he was committed

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - OTHER MATTERS - where a clerk in the Office of the Director of Public Prosecutions purported to present an indictment - whether the indictment was presented by a person who was authorized to do so - whether the Crown having been refused an extension of time within which to present an indictment could now present an ex officio indictment in exactly the same terms

Judiciary Act 1903 (Cth), s 69(1)
Criminal Code (Qld), s 560(2), s 561, s 590, s 591

Director of Public Prosecutions Act 1984 (Qld), s 10(3), s 24(2)

Barton v R (1980) 147 CLR 75, considered

Ex parte Johnson and Edwards (1979) 2 A Crim R 414, considered

Jane Denton's Case (1823) 1 LEWIN 53; 168 ER 956, considered

R v Baxter (1904) 5 SR(NSW) 134, considered
R v Bright [1980] QdR 490, considered
R v Durnin [1945] QWN 35, considered

R v Harker [2002] QSC 61; SC No 92 of 2002, 20 March 2002, not followed

R v McInnes, Erskine and Calwell [1940] VLR 416, considered

R v Parker [1977] VR 22, distinguished

R v Sylvander [1999] QDC 184; DC No 3731 of 1998, 23 February 1999, considered

R v Webb [1960] QdR 443, considered

COUNSEL:

A W Moynihan for applicant
D Meredith for respondent

SOLICITORS:

Legal Aid Queensland for applicant
Director of Public Prosecutions (Queensland) for respondent

THE COURT: On 23 April 2002 the applicant filed an application in the District Court seeking an order that an indictment presented…

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 Foley

Details

AGLC: R v Foley [2002] QCA 522
Case: [2002] QCA 522
Decision Date: 29 November 2002

CaseChat Overview and Summary

In the case of R v Foley, the High Court of Australia was asked to consider the validity of an indictment presented by a clerk in the Office of the Director of Public Prosecutions in Queensland. The central issue was whether the clerk had the requisite authority to present the indictment, and whether the Crown could subsequently present an ex officio indictment after an extension of time was refused. The applicant, who had been committed for trial, argued that the original indictment was invalid because it was not presented by an authorized person, and thus the Crown could not present an ex officio indictment in the same terms.

The court examined the statutory provisions and case law to determine the necessary authority for presenting an indictment. It found that the clerk did not possess the requisite authority to present the indictment, as this power was reserved for specific individuals as per the Director of Public Prosecutions Act 1984 (Qld). Furthermore, the court held that once an extension of time to present an indictment had been refused, the Crown could not present an ex officio indictment in the same terms. The court relied on prior cases such as Barton v R and Ex parte Johnson and Edwards to support its findings.

In conclusion, the High Court declared that the indictment signed by the Director of Public Prosecutions on 5 February 2002 had not been presented, and that no ex officio indictment could be presented charging the applicant with the offence in question. This decision underscores the importance of procedural correctness in criminal proceedings and the necessity for the appropriate authority to present an indictment.

Orders

Orders of the court

Declare:

1. that the indictment signed by the Director of Public Prosecutions on 5 February 2002 has not been presented;

2. that no ex officio indictment may be presented charging the applicant with the offence the subject of the indictment referred to in 1.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Foley [2002] QCA 522

Most Recent Citation

R v Dexter [2002] QCA 540

Cases citing this decision · 9 of 9 shown

R v BDT
[2022] QCA 152 Para 10

…Court saying “Your Honour, I present an indictment in respect of the accused […] charging him with one count of […]”. [70] [2003] 2 Qd R 88; [2002] QCA 522. [71] Section 561 in respect of ex officio indictment was also considered but that is not relevant to the current appeal.…
R v Ellis
[2010] QDC 533 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].…
Director of Public Prosecutions v Cicolini
[2007] QCA 336

…ER 159, applied R v Crown Court at Manchester, ex Parte McDonald [1999] 1 All ER 805, applied R v Foley [2003] 2 Qd R 88; [2002] QCA 522, applied Stollznow v Calvert [1980] 2 NSWLR 749, cited Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) NSW 405, applied COUNSEL: P Callaghan SC for the respondents/applicants…
R v LT
[2006] QCA 534 Para 1

…ose historically performed by the grand jury.[2] [2] R v Webb [1960] Qd R 443 at 446 – 447; Cth DPP v Fukusato [2002] QCA 20 at [96]; R v Foley [2002] QCA 522 at [10] – [12]; R v Dexter [2002] QCA 540 at [66] – [68], [81].…
R v Ford; ex parte
[2006] QCA 440 Para 1

…s 561 "does not permit the presentation of an ex officio indictment for an offence in respect of which a defendant has been committed for trial". [8][2002] QCA 522; [2003] 2 Qd R 88 at 96 [25].…
R v Boulle
[2006] QSC 253 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 Cockrell
[2005] QCA 59

…ublic Prosecutions [1921] 2 AC 299, distinguished R v Bright [1980] Qd R 490, applied R v Foley [2002] QCA 522; [2003] 2 Qd R 88, applied R v Smith [1954] QWN 49, distinguished R v Suarez-Mejia (2002) 131 A Crim R 577, considered COUNSEL: The applicant/appellant appeared on his own behalf S J Keim SC for the resp…
Vandermeer v The Queen
[2003] QDC 26 Para 2

…uant to s.596 of the Criminal Code , but rather as one seeking a declaration that the indictment so presented has no legal effect: see R v. Foley [2002] QCA 522. The respondent submits that there is no leave necessary, alternatively, if I am against that submission, an application will be made pursuant to s.590(2…
R v Dexter
[2002] QCA 540 Para 1

…not expressly state this but was construed as if it did: R v Macdermott (1844) 1 Legge 236 at 237. [64]See the authorities cited at fn 6 of R v Foley [2002] QCA 522; Appeal No 4007 of 2002, 29 November 2002. [65]Sir William Searle Holdsworth, "A History of the English Law", 6th ed, Little, Brown and Company, Bost…

View all 9 citing cases →

Cases cited in this decision · 5 of 5 shown

R v Harker
[2002] QSC 61 Para 1

…n which it was intended to put him on trial, but in respect of which an application under s 590(2) had failed.[21] [21]We would not follow R v Harker [2002] QSC 61; SC No 92 of 2002, 20 March 2002 in which a Supreme Court Judge refused to stay an ex officio indictment presented in circumstances similar to those…
Barton v the Queen
[1980] HCA 48 Para 1

…R 414 at 415 - 416. A common example is where a magistrate has refused to commit the defendant for trial: R v Baxter (1904) 5 SR(NSW) 134; Barton v R (1980) 147 CLR 75 at 99, 105. [20] R v Durnin [1945] QWN 35; Barton v R at 113(f).…
To the Opposite Effect R. V. Sylvander
[1999] QDC 184 Para 1

…ge refused to stay an ex officio indictment presented in circumstances similar to those in the present case. See to the opposite effect R v Sylvander [1999] QDC 184; DC No 3731 of 1998, 23 February 1999.…
(1851) 1 Legge 706
(1851) 1 Legge 706 Para 1

…also materially different. And his Honour did not appear to advert either to the precise terms of s 560(2) or its historical context. [14] R v Walton (1851) 1 Legge 706.…
168 ER 956
168 ER 956 Para 1

…as made out, to endorse the bill "true bill"; and secondly to themselves deliver those bills into court.[6] [6] Jane Denton's Case (1823) 1 LEWIN 53; 168 ER 956. See also Stephen, A History of the Criminal Law of England , Macmillan and Co, London, 1883, Vol 1 at 274; Stephen and Stephen, A Digest of the Law…

Legislation cited in this decision · 4

Director of Public Prosecutions Act 1984 (Qld)
10(3) 2 mentions
Judiciary Act 1903 (Cth)
69(1) 2 mentions (from Para 1)
Criminal Code and Justices Act Amendment Act 1975 (Qld)
21 1 mention (from Para 1)
Supreme Court Act 1867 (SA)
27 1 mention

CITATION:	R v Foley [2002] QCA 522
PARTIES:	R v FOLEY, Clayte Terrance (applicant)
FILE NO/S:	Appeal No 4007 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Removal or Remission
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	29 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	23 September 2002
JUDGES:	de Jersey CJ, Davies JA and Jones J Judgment of the Court
ORDER:	Declare: 1. that the indictment signed by the Director of Public Prosecutions on 5 February 2002 has not been presented; 2. that no ex officio indictment may be presented charging the applicant with the offence the subject of the indictment referred to in 1.
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - FILING OF INFORMATION, PRESENTMENT OR INDICTMENT - QUEENSLAND - where a clerk in the Office of the Director of Public Prosecutions purported to present an indictment - whether the indictment was presented by a person who was authorized to do so CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - FILING OF INFORMATION, PRESENTMENT OR INDICTMENT - QUEENSLAND - where the applicant was committed for trial and the Crown did not present an indictment within six months - where an application for an extension of time within which to present an indictment was refused - whether the Crown could now present an ex officio indictment charging the applicant with the offence for which he was committed CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - OTHER MATTERS - where a clerk in the Office of the Director of Public Prosecutions purported to present an indictment - whether the indictment was presented by a person who was authorized to do so - whether the Crown having been refused an extension of time within which to present an indictment could now present an ex officio indictment in exactly the same terms Judiciary Act 1903 (Cth), s 69(1) Criminal Code (Qld), s 560(2), s 561, s 590, s 591 Director of Public Prosecutions Act 1984 (Qld), s 10(3), s 24(2) Barton v R (1980) 147 CLR 75, considered Ex parte Johnson and Edwards (1979) 2 A Crim R 414, considered Jane Denton's Case (1823) 1 LEWIN 53; 168 ER 956, considered R v Baxter (1904) 5 SR(NSW) 134, considered R v Bright [1980] QdR 490, considered R v Durnin [1945] QWN 35, considered R v Harker [2002] QSC 61; SC No 92 of 2002, 20 March 2002, not followed R v McInnes, Erskine and Calwell [1940] VLR 416, considered R v Parker [1977] VR 22, distinguished R v Sylvander [1999] QDC 184; DC No 3731 of 1998, 23 February 1999, considered R v Webb [1960] QdR 443, considered
COUNSEL:	A W Moynihan for applicant D Meredith for respondent
SOLICITORS:	Legal Aid Queensland for applicant Director of Public Prosecutions (Queensland) for respondent