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)

1. 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.”

2. 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 has been committed for trial or not.
(2)	A Crown prosecutor or a person appointed by the Governor in Council to sign and present indictments in any court of criminal jurisdiction may sign and present an indictment in that court against any person for any indictable offence within the jurisdiction of the court, whether the accused person has been committed for trial or not and against any person for an indictable offence who with the person’s prior consent has been committed for trial or for sentence for an offence before that court.
(3)	Also, if an indictment is signed by a person authorised to sign the indictment under this section, a DPP presenter may present the indictment to the court stated in the indictment.”

1. Section 590 of the Criminal Code is in these terms:

“590 Bringing accused to trial

(1) Subject to section 561, when a person charged with an indictable offence has been committed for trial and it is intended to put the person upon his or her trial for the offence, the director of public prosecutions must present the indictment no later than 6 months after the date on which the person was committed for trial.

(2)

If –

(a)	an indictment is not so presented; or
(b)	it becomes apparent that evidence necessary to establish the offence is not going to be available; or
(c)	the accused has absconded and is not likely to be found before the expiry of the period; or
(d)	for any other reason it is impracticable to present the indictment;

the director of public prosecutions or a Crown prosecutor may apply to the Court at any time before or after the expiry of the period for an extension of time within which to present an indictment.

(3) The court hearing the application may, if satisfied that good cause is shown and no miscarriage of justice is likely to result, grant the extension of time the court considers just.

(4) If an indictment is not presented before the expiry of the period or any extension of the period, the person is entitled to be discharged from the consequences of his or her committal.”

Background

1. To understand the nature of the application, it is necessary to set out a brief history of the litigation. On 3rd May 2001 a complaint was sworn by police officer Leesa Maree Henricksen alleging that the applicant had “on the 6th day of March 2001 … unlawfully and indecently assaulted S.L.V.” (the charge). The applicant was summonsed to appear at the Maroochydore Magistrates Court on the 23rd May 2001. The factual allegations relied upon by the respondent are summarised at page 2 of Mr Kinsella’s written submission:

   “The accused was a Queensland Rail employee at the Nambour railway station. The complainant, S.L.V., was a TAFE student (DOB 21/3/85), who attended at the Nambour railway station at about 5 pm on 6 March 2001. She spoke to the accused in the ticket booth and boarded the train due to depart for Beerwah.

   As the complainant was sitting in the train, the accused approached her and sat down opposite her. He essentially seemed to mistake her for a girl on the train the previous day, then asked to see her necklace and navel ring. He poked at her navel ring, and then asked about the hair on her stomach. When the complainant told him “it’s my snail trail”, he abruptly pulled at her underpants, looked down the front of them and said “you’ve got hair down there”. They continued to talk about hair. The complainant states that she felt uncomfortable at this stage.

   The accused then ran his hand up her legs under her skirt on the outside of her right leg. The complainant moved her body away from the accused, towards the train window. The accused asked if he could look at her shoes, she declined. He then grabbed the bottom of her skirt and placed his hand between her legs, moving it up to her inner thighs. The complainant then essentially told him off. He left when a male passenger (Stephen SCHROEDER) boarded the train.”

2. The matter then proceeded, until a committal hearing was held on the 26th October 2001 which involved cross-examination of prosecution witnesses. The applicant was committed to stand trial on the charge at the next sittings of the District court at Maroochydore. On the 11th December 2001 at a general call over before myself, the matter was notified as a definite trial, and was given a trial date as trial number three in the week commencing the 25th February 2002. No indictment had then been presented. This procedure is adopted as a case management technique. It is accepted that this Court has no jurisdiction until an indictment is presented: R v. Jenkin [1994] 1 Qd R 266. Thereafter, the applicant’s solicitor Mr Boyce attempted unsuccessfully to obtain a copy of the indictment. On the 13th February 2002 the respondent wrote to both Mr Boyce and to the Court in these terms:

   “13 February 2002

   Attention: Mr P Boyce
   Butler McDermott and Egan
   PO Box 117

   Nambour 4560

   Dear Mr Boyce

   Re: R v. Klaas Vandermeer

   I refer to the committal of your client for the trial to the District Court at Maroochydore on a charge/s of Indecent Assault. It has been decided that an indictment will not be presented against your client.

   We have advised Queensland Police to proceed against your client with a charge of common assault, determined in the Magistrates Court.

   Yours faithfully,

   Jo-Anne Maddigan
   Instructing Clerk
   Signed for and on behalf of L J Clare
   Director of Public Prosecutions”
   “13 February 2002
   Attention: Ben Cooke
   District Court Listings Officer
   Maroochydore court House
   Cornmeal Pde

   Maroochydore 4558

   Dear Mr Cooke,

   Re: R v. Klaas Vandermeer

   On 26 October, 2002 the abovementioned accused was committed for trial to the District Court at Maroochydore on a charge/s of Indecent Assault.

   It has been decided that an indictment will not be presented against the accused. Please note your records accordingly.

   Yours faithfully,

   Jo-Anne Maddigan
   Instructing Clerk
   Signed for and on behalf of L J Clare
   Director of Public Prosecutions”

3. On the 5th March 2002 police officer Henricksen swore out a further complaint as follows:

   “That on the 6.3.2001 … (the applicant) unlawfully assaulted one
   S.L.V.” (the subsequent charge)

4. The summons was served on the 3rd May 2002, and again the matter progressed through the Maroochydore Magistrates Court, until a hearing date was set for the 6th September 2002. The matter came on for hearing before Mr K Taylor, Magistrate on that day, and Mr Boyce appeared for the applicant. I have not seen a transcript of what occurred that day, however I have read a transcript of Mr Taylor’s decision and an affidavit of the police prosecutor Sgt Pattison. I am satisfied that no evidence was received, rather Mr Boyce made a preliminary application to stay the prosecution on a number of grounds, including double jeopardy and want of jurisdiction. It is not clear at all that Mr Taylor was aware of the letters from the respondent to Mr Boyce and this Court dated the 13th February 2001. He proceeded on the basis that the committal for trial made on the 26th October 2001 was “still good – still on foot” because a nolle prosequi had not been entered. He does not appear to have been told that the respondent had decided not to present an indictment. The legal effect of this decision by the respondent is the central issue before me to which I will return. The other aspect of Mr Taylor’s decision relates to what he found to be a want of jurisdiction because the offence before him was one “of a sexual nature”: s.552A(1)(b) of the Criminal Code. He was dealing with the subsequent offence; however it was argued by Mr Boyce and the prosecutor that although the offence was common assault, nevertheless because of the circumstances it was an “assault of a sexual nature”. Mr Taylor accepted this submission, although he was clearly unaware of the decision of the respondent not to present an indictment. The prosecutor was also clearly unaware of this when he said at page 7 line 38 “The matter is still rightfully before, or, in the hands of the Director of Public Prosecutions, so we’re alleging the same facts”. It is not necessary for me to decide if Mr Taylor was correct in relation to the question of jurisdiction. In passing, I observe that if he had been aware of the actual position, i.e. that no indictment was before this Court, and that the respondent had advised in writing that it did not intend to present an indictment, then, having found that he did not have jurisdiction to determine the matter summarily, the proper course would have been to proceed to hear the matter as a committal hearing.

5. I now turn to the critical issue raised in the first part of the application, and that is the legal effect of the respondent’s letters dated the 13th February 2001. The term “no true bill” is often used to describe a decision taken by the Director of Public Prosecutions after committal not to present an indictment.

6. Mr Courtney for the applicant submits that, apart from the Bail Act, there is no reference in the Code or other statute law to the notion of a “no true bill”. He submits that the effect of the committal for trial on the 26th October 2001 was not overcome by the decision of the respondent not to present an indictment. It follows therefore that s.590 still applies, and s.561 should not be used to, as it were, circumvent the obligations placed on the respondent by s.590. Mr Kinsella submits that the letter of the 13th February 2002 constituted a “no true bill”, and, as from that date, the applicant was discharged from his committal and therefore s.590 has no application. He submits further that, in the circumstances of this case, the exercise of the power to present an ex officio indictment pursuant to s.561 is appropriate and proper.

7. The concept of a “no true bill” finds its origins in the grand jury system of indictment which persists today in the United States of America. The grand jury system did not gain general acceptance in this country, rather the “indictment”, “information” or “presentment” by the Attorney-General or other law officer, either after committal proceedings or ex officio was, in 1900, established in each colony as the ordinary method of initiating the arraignment and trial of a person charged with a serious offence: see the discussion of Deane J in Kingswell v. The Queen (1985) 159 CLR 264 at 304, and per Dawson J in Grassby v. The Queen (1989) 168 CLR 1. In R v. Webb [1960] Qd R 443 at 447 Philp J said:

   “Of course normally in Queensland as in England to-day the procedure followed towards the indictment of an accused person is by committal proceedings before a magistrate as provided by the Justices Acts. From the depositions of witnesses taken before the magistrate the accused knows what case he has to meet and the magistrate if he be not satisfied that a prima facie case of guilt in law and in fact has been made may refuse to commit. The magistrate thus fulfils in part the function of a grand jury and that function is also partly fulfilled by the Crown Prosecutor who after perusal of the depositions may recommend a no true bill.”

   Quoted with approval by Muirhead J in Siugzdinis and Mauri (1984) 15 A Crim R
   136 at 141.

8. The phrase is used regularly in Courts to inform the Court and the accused that the Crown will not be proceeding, despite a committal for trial, however, the term “no true bill” is not used in the Code or in other legislation governing trial procedures. Examples of its common use can be demonstrated by reference to the phrase in judgments e.g. per Atkinson J in R v. Bates & Baker [2002] QCA 174 at para 78 of Her Honour’s judgment and White J in Adams v. Reynolds (unreported judgment of the Supreme Court of Queensland, No. 908 of 1988, 1 May 1996). The law recognises that a decision by the Director not to present an indictment against a person after a committal should result in that person being released from any custody in respect of such committal: s.205 Supreme Court Act 1995, and s.36B of the Bail Act 1980 which is in these terms:

“36B

When bail ceases to have effect

Where the director of public prosecutions or, as the case may be, deputy director of public prosecutions or a person duly authorised by the director or deputy director in writing in that behalf, either generally or in a particular case, advises the court to which a defendant has been committed for trial that the director or deputy director will not be presenting an indictment against the defendant the defendant is thereby discharged from complying with the conditions specified in the defendant’s undertaking and to which the undertaking is subject pursuant to this Act and thereupon the undertaking shall cease to have effect.”

1. Further the Criminal Practice Rules oblige the Director to notify the Court and the accused person as soon as possible after making the decision not to present an indictment. Rule 20(6) is in these terms:

   “20(6) If the director of public prosecutions decides not to present an indictment against an accused person who has been committed for an offence, the director of public prosecutions must, as soon as possible after making the decision, give written notice of it to the following –

(a)	the accused person or the accused person’s lawyer;
(b)	if the accused person is in the custody of the chief executive (corrective services), the chief executive (corrective services);
(c)	the proper officer of the court that committed the accused person;
(d)	the proper officer of the court to which the accused was committed.”

1. Chapter 60 of the Criminal Code dealing with indictments sets out the process whereby an indictment is presented after “a person charged with an indictable offence has been committed for trial”: s.560, and “whether the accused has been committed for trial or not”: s.561. Generally speaking, the power of the Director to present an ex officio indictment is not examinable by the Court: The Queen v. Barton (1980) 147 CLR 75, but once that power is exercised, the courts will control the proceedings to ensure that the accused has a fair trial: per Gibbs and Mason JJ at 95-96 of their joint judgment. The Court of Appeal considered the interaction of ss.561 and 590 in R v. Foley [2002] QCA 522. The circumstances there are clearly distinguishable from the circumstances here. In Foley the applicant had been committed for trial, and due to administrative inefficiency in the Director’s office, an indictment was not presented within six months. An application to extend time was refused. Thereafter, a clerk in the employ of the Director purported to present an ex officio indictment. The Court declared that this indictment was not presented because the clerk was not a person entitled to present indictments in accordance with the then wording of s.560. The Court went on to express an opinion about the purpose and construction of s.561 and its interaction with s.590. It construed s.561 in such a way that “it does not permit the presentation of an ex officio indictment for an offence in respect of a defendant who has been committed for trial”. The Court noted (at para 25) “To construe it so as to permit that result would be to permit circumvention of a safeguard which the legislature provided to a defendant to ensure a prompt prosecution or discharge”.

2. The Court went on:

   “[26] Once that is accepted, the phrase “Subject to section 561” in s 590 may be given a sensible meaning. It was intended to make it clear that that section does not prevent the presentation, pursuant to s 561, of an ex officio indictment against a person for an offence other than that on which he has been committed for trial, as s 561 envisages.

   [27] Consequently we do not think that s 561, on its proper construction, would permit the presentation of an ex officio indictment where, as in this case, the only purpose thereof would be to charge a person with an indictable offence for which he had been committed for trial and on which it was intended to put him on trial, but in respect of which an application under s 590(2) had failed.”

3. Neither Counsel was able to find a case in which the circumstances here arose. It follows that if the committal for trial on the 26th October 2001 is still in effect, Foley would seem to prevent the respondent from now presenting an ex officio indictment.

4. It seems to me that when one has regard to the general practice of the Courts and the Director in relation to the decision not to present an indictment after a committal, and in particular to the mandatory requirements of rule 20(6) of the Criminal Practice Rules and the legal consequences of such notification for an accused person: s.205 Supreme Court Act 1995, and s.36B Bail Act 1980, the written notification to the applicant’s solicitor and to the Court constituted an end to the legal effects of the committal as from the 13th February 2002. It follows that s.590 does not apply, and, in my opinion, in all the circumstances of the case, and bearing in mind what the Court of Appeal said in Foley, the presentation of the ex officio indictment on the 29th November 2002 was lawful. This is not to say, that in all cases where the Director decides for various reasons not to present an indictment after committal, and then later (after the expiration of the six month period) decides to present an ex officio indictment charging the same offence as that the subject of the committal, would it be held to be a lawful exercise, particularly when one has regard to the construction of s.561 favoured by the Court of Appeal in Foley. It follows that the application fails. It is not necessary therefore for me to go on and consider the issue of “good cause” pursuant to s.590(4).

1. The applicant still has open to him the right to apply for a stay on the grounds that to permit the respondent to proceed would constitute an abuse of process. This is a matter for the applicant, but given the very limited circumstances in which the Court exercises this power: see Jago v. District Court of NSW (1989) 168 CLR 23; and having regard to the circumstances here, particularly in the Magistrates Court hearing of the subsequent offence, he may face difficulties.