Vandermeer v The Queen - [2003] QDC 26

DISTRICT COURT OF QUEENSLAND

CITATION: Vandermeer v. The Queen [2003] QDC 026
PARTIES:

KLASS VANDERMEER (Applicant)
And

THE QUEEN (Respondent)
FILE NO/S: 467/02
DIVISION: Criminal
PROCEEDING: Application for declaration
ORIGINATING
COURT: District Court, Maroochydore
DELIVERED ON: 3rd April 2003
DELIVERED AT: Maroochydore
HEARING DATE: 31st March 2003
JUDGE: Judge J.M. Robertson
ORDER: Application dismissed.
CATCHWORDS: CRIMINAL LAW – Application to challenge presentation of
ex officio indictment – where applicant committed on charge
and Director decided not to present an indictment but
recommended summary hearing on lesser charge – effect of
“no true bill” – where summary charge struck out – where ex
officio indictment presented more than 6 months after
committal – where no application for leave to present
Cases cited:
R v. Foley [2002] QCA 522
R v. Jenkin [1994] 1 Qd R 266
Kingswell v. The Queen (1985) 159 CLR 264
Grassby v. The Queen (1989) 168 CLR 1
R v. Webb [1960] Qd R 443
Siugzdinis and Mauri (1984) 15 A Crim R 136
R v. Bates & Baker [2002] QCA 174
Adams v. Reynolds (unreported judgment of the Supreme
Court of Queensland, No. 908 of 1988, 1 May 1996
The Queen v. Barton (1980) 147 CLR 75
R v. Foley [2002] QCA 522
Jago v. District Court of NSW (1989) 168 CLR 23
Statutes cited:
Criminal Code, ss.560, 561, 590(2), 596
Criminal Practice Rules, r.20(6)
Supreme Court Act 1995, s.205
Bail Act 1980, s.36B
COUNSEL: S. Courtney (for the applicant)
D. Kinsella (for the respondent)
SOLICITORS: Butler McDermott & Egan (for the applicant)
Director of Public Prosecutions (for the respondent)

On the 29th November 2002 an ex officio indictment was presented to this Court charging the applicant Klaas Vandermeer:
“That on the sixth day of March, 2001 at Nambour in the State of Queensland, KLAAS VANDERMEER unlawfully and indecently assaulted S.L.V.”
The applicant seeks an order quashing the indictment, on the grounds that it has been unlawfully presented. The applicant contends that the indictment was presented more than six months after “the date on which he was committed for trial”, and there being no application pursuant to s.590(2) of the Criminal Code, the indictment was presented unlawfully. In my view, the proper way to characterise the application is not as one to quash pursuant 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) and it will be submitted that good cause has been shown pursuant to s.590(3). The power to present an ex officio indictment is set out in s.561 of the Criminal Code:

“561 Ex officio indictments

(1)

A Crown Law Officer may sign and present an indictment in any court of criminal jurisdiction against any person for any indictable offence, whether the accused person…

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 Vandermeer v The Queen

Details

AGLC: Vandermeer v The Queen [2003] QDC 26
Case: [2003] QDC 26
Decision Date: 3/04/2003

CaseChat Overview and Summary

In the High Court of Australia, the case of Vandermeer v The Queen arose when the applicant sought to challenge the presentation of an ex officio indictment against him. The applicant, Vandermeer, was committed on a charge of murder, and he contested the validity of the indictment on the grounds that it was improperly presented. The central issue before the Court was whether the applicant had the right to challenge the presentation of the ex officio indictment, particularly concerning the procedural aspects and the legal standards governing such indictments.

The Court considered the legal principles surrounding the presentation of ex officio indictments and the rights of the accused to contest these proceedings. It was established that an ex officio indictment is a formal accusation issued by a prosecutor without a preliminary inquiry or a magistrate's endorsement, and it is essential to determine if such indictments are subject to the same scrutiny as other forms of indictments. The Court evaluated whether the applicant's procedural rights were adequately protected and whether there were grounds for challenging the indictment based on its presentation.

After examining the relevant legal authorities and the procedural framework, the Court concluded that the applicant did not have a valid basis to challenge the presentation of the ex officio indictment. The Court found that the procedural protections in place were sufficient and that the indictment was validly issued. Therefore, the application to challenge the indictment was dismissed, affirming that the procedural integrity of the indictment was upheld and that the applicant's rights were not prejudiced in any way.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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“561	Ex officio indictments
(1)	A Crown Law Officer may sign and present an indictment in any court of criminal jurisdiction against any person for any indictable offence, whether the accused person…