The Queen v Thomas Johnston

[2012] ACTSC 166

THE QUEEN v THOMAS JOHNSTON
 [2012] ACTSC 166 (5 November 2012)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – mode of trial - Criminal Proceedings Legislation Amendment Act 2011 (ACT) – prosecution filed new indictment – commencement of new proceedings – validity of election

Criminal Proceedings Legislation Amendment Act 2011 (ACT)

Supreme Court Act 1933 (ACT), s 68B

Evidence (Miscellaneous Provisions) Act 1991 (ACT), div 4.2B

R v Girvan [2012] ACTSC 142
W v The Queen (2001) 124 189 ALR 633
R v DF (no.2) [2012] ACTSC 3

No. SCC 240 of 2010

Judge: Burns J             
Supreme Court of the ACT

Date: 5 November 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 240 of 2010
AUSTRALIAN CAPITAL TERRITORY           )          

THE QUEEN

v

THOMAS JOHNSTON

ORDER

Judge:  Burns J
Date:  5 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The mode of trial of the accused on the indictment of 16 December 2011 is trial by jury.

1. The accused is scheduled to be tried on 17 December this year with respect to five counts on an indictment dated 16 December 2011 (the second indictment).  The charges against the accused are:

a.        One count of intentionally and unlawfully administering to EK a stupefying or overpowering drug or poison or any other injurious substance likely to endanger human life or cause grievous bodily harm;

b.        (in the alternative to Count 1) assault occasioning actual bodily harm;

c.        Using a child for the production of child pornography (2 counts);

d.        Intentionally possessing child pornography.  

1. This was not the original indictment filed by the Crown. An earlier indictment dated 19 August 2010 (the first indictment) contained three counts, in the same terms as Counts 1, 2 and 3 in the second indictment. On 2 November 2010 the accused filed a notice of election for trial by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT). The accused was arraigned on the first indictment on 1 February 2011 and trial dates were notionally allocated in September 2011 by the Registrar. The matter did not proceed to trial in September 2011 due to the accused’s ill health.

1. After the second indictment was filed, the Crown filed an application to lead tendency and coincidence evidence and the accused applied to sever the indictment.  On 22 March this year I granted the Crown’s application to lead tendency evidence, and refused the application to sever the indictment.

1. On 23 March this year the complainant EK gave evidence pursuant to Division 4.2B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Before the complainant gave evidence, counsel for the accused raised an issue as to the mode of trial. The issue arose because on 7 July 2011 the Criminal Proceedings Legislation Amendment Act 2011 (ACT) came into effect, amending s 68B of the Supreme Court Act so as to restrict the right of accused persons to elect trial by judge alone.  It is opportune to set out s 68B in its current, amended form:

(1)A criminal proceeding against an accused person for an offence other than an excluded offence must be tried by a judge alone if –

(a) the person elects in writing to be tried by a judge alone; and

(b) the person produces a certificate signed by a legal practitioner stating that –

(i) the legal practitioner has advised the person in relation to the election; and

(ii) the person has made the election freely; and

(c) the election and certificate are filed in the court before –

(i) the court first allocates a date for the person’s trial; and

(ii) the person, or the person’s legal representative, knows the trial judge’s identity; and

(d) if there is more than 1 accused in the proceeding –

(i) each other accused person also elects to be tried by judge alone; and

(ii) each other accused person’s election is made in relation to all offences for which that person is to be tried in the proceeding; and

(iii) none of the offences for which any other accused person is to be tried is an excluded offence.

(2)An accused person who elects to be tried by a judge alone may, at any time before the person is arraigned, elect to be tried by a jury.

(3)If an accused person makes and then withdraws an election, the person may not make another election.

(4)In this section:

excluded offence means an offence against a provision mentioned in an item in schedule 2 (Trial by judge alone – excluded offences), part 2.2, column 3 of an Act mentioned in the item, column 2.

1. For present purposes, the significant amendment introduced into s 68B by the Criminal Proceedings Legislation Amendment Act was the abolition of the right of accused persons to elect trial by judge alone with respect to “excluded offences”.

1. “Criminal proceedings” is defined in the Dictionary to the Supreme Court Act as “proceedings in the court for the prosecution of a person on indictment”. Excluded offences are those set out in Schedule 2, part 2.2 of the Supreme Court Act and include the offences of using a child for the production of child pornography (Counts 3 and 4 on the second indictment) and possessing child pornography (Count 5 on the second indictment).  Thus, there are three offences in the current indictment that are excluded offences for the purposes of the amended s 68B.

1. The first question which arises is whether the amendment to s 68B invalidated the election for trial by judge alone made by the accused in November 2010.  This issue recently arose in proceedings before Refshauge ACJ in R v Girvan [2012] ACTSC 142. For the reasons given by his Honour, I determine that the election was validly made, and remained valid after the amendment of s 68B.

1. The complicating circumstance in the present case, not a feature of Girvan [2012] ACTSC 142, is the substitution of the second indictment for the first, which raises the question whether the laying of the second indictment constituted the commencement of new “criminal proceedings” for the purposes of s 68B. As I have stated, three counts on the second indictment are “excluded offences” for the purposes of s 68B, as amended, of which two were counts not included on the first indictment.

1. The resolution of this issue is of particular importance, as a purported trial utilising an unauthorised mode of trial may be a nullity: see Whitlam J (with whom Madgwick J agreed) in W v The Queen (2001) 189 ALR 633 at [75]. It is really quite unacceptable that the validity of the accused’s mode of trial should be left in such doubt, when the issue could so easily have been resolved by including transitional provisions in the Criminal Proceedings Legislation Amendment Act.

1. The phrase “criminal proceedings” in s 68B is susceptible of two meanings.  It may mean:

a)        proceedings in the court with respect to a particular event once an indictment has been filed, irrespective whether further, different indictments be later filed with respect to the same incident; or

b)        proceedings in the Court with respect to a particular indictment.

If the former definition is adopted, then the accused’s election for trial by judge alone remains valid.  If the latter interpretation is correct, his election is no longer valid and he no longer has the right to elect for trial by judge alone.

1. In adopting the latter of the two possible interpretations I respectfully adopt the comments of Refshauge J in R v DF (no.2) [2012] ACTSC 3 at [53]:

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.

1. If the filing of the second indictment had been an attempt to deprive the accused of his right to trial by judge alone, the proceedings on the fresh indictment could have been stayed as an abuse of process.  However, there is no suggestion that the Crown’s purpose in filing the second indictment was other than proper, being the inclusion of two further counts not found on the first indictment.

1. As a consequence, I find that the filing of the second indictment was the commencement of new proceedings for the purposes of s 68B.  As that indictment was filed after the amendment of s 68B, and contains excluded offences, the accused had no right to elect for trial by judge alone in the proceedings commenced by the filing of the second indictment.

1. The mode of the accused’s trial, as mandated by s 68B, is trial by jury.

1. If the Crown has not already done so, I direct that it file a Notice Declining to Proceed with the prosecution of the indictment dated 19 August 2010. 

   I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:          James Middleton

   Date:                 5 November 2012

Counsel for the Crown:  Dr K Weston-Scheuber
Solicitor for the Crown:  Director of Public Prosecutions (ACT)
Counsel for the Defendant:  Mr K Archer
Solicitor for the Defendant:  Kamy Saeedi Lawyers
Date of hearing:  27 April 2012
Date of judgment:  5 November 2012