Ex-Officio Indictments & Committals

Summary of Facts

There is a brawl on a football field in December 2004 between two touch football teams who do not know each other. Out of some 16 people (8 from each team), only a couple of players are not involved. Someone described the melee like “a swarm of bees”. One person receives facial injuries that later require surgical intervention. The brawl ends and the teams separate. The injured person has blood on his face and a person from the other team (lets call him Bart) says “how’s your face?”

Discussions and speculation end up pointing at Bart as causing the injury but it is fair to say the identification evidence is poor, tainted, unreliable, and one sided. The injured player (let’s name him “Mr Smithers”) seeks advice from a lawyer about potential civil suits against Bart, the footy organisation and the referee. He rings the referee and suggests that he might be pursuing such civil suits and also that the police might give the referee a call for a statement.

Legal Proceedings

Police end up charging Bart in December 2005 with Grievous Bodily Harm.

The police took statements from Mr Smithers, Smithers’ footy team, the referee, the police involved, and one footy club official over the course of some 12 months. No statements were taken from any of Bart’s team.

In mid 2008, after a 4 day Committal Hearing in the Magistrates Court, with full evidence for the most part and extensive cross examination of all of the witnesses, the experienced Magistrate found the evidence did not satisfy the standard to be committed to the District Court for a jury trial. Bart was discharged.

Mr Smithers was obviously unhappy with this judicial decision and in June 2008 the DPP effectively recharge Bart, by presenting an Ex Officio Indictment.

So what does the law have to say about this?

As most lawyers know, when police in Queensland charge a person with any offence, proceedings commence in the Magistrates Court. The role of the Magistrates Court for matters that must traverse to a higher level of jurisdiction is to assess whether there is sufficient evidence that can be placed before a jury. The standard is such that matters should only be committed to the higher court where the evidence is such that a reasonably instructed jury could convict. If the magistrate decides that test is not satisfied, the accused person is discharged and that is normally the end of the matter.

Ex Officio Indictments

Section 561 of the Criminal Code (Qld) provides for a Crown Law Officer presenting 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.

Relevant Authorities

In Reg v Webb (1960) QdR 443 at 446, Justice Philp stated:

“We have been asked to give some guidance as to the practice of presenting ex officio indictments…

Section 561 of The Criminal Code clearly gives power to a Crown Law Officer….to present an ex officio indictment…In his draft code Sir Samuel Griffith gives the source of that section as being “Present law”. So far as I can see the power is the result of historical accident.

When Australia was founded the law of England had long settled that an indictment for treason or felony could be presented only after at least twelve men on a grand jury were persuaded that a prima facie case had been made out and had found a true bill. The Attorney General’s power to present an indictment by virtue of his office had been the subject of a long struggle between the Crown and the Commons going back to the time of Edward III ( see The Attorney General of the Duchy of Lancaster v. The Duke of Devonshire ([1984] 14 Q.B.D. 195 at pl. 197)) and ultimately it became limited to indictments for misdemeanours and in practice to “enormous” misdemeanours eg…affecting the state or the sovereign.

In early New South Wales presentment by a grand jury and trail by a petty jury were inappropriate and in 1928 the Imperial Parliament enacted…that until provision be made for juries indictments for all offences might be presented by the Attorney General or person appointed…a Crown Prosecutor…Subsequent legislation provided for trial by petty jury but as the grand jury was never introduced the power in the Attorney General and the Crown Prosecutor to present indictments remained and was the “present law” at the time…

Whether the present Queensland law should be amended so as to secure to Queenslanders the same immunity from the indictment by the Crown without committal proceedings as is enjoyed by Englishmen is a matter for the Legislature to determine.

Of course normally in Queensland as in England today 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 the 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…

This normal procedure thus provides safeguards against the conviction of innocent persons…

Although s.561 gives the Crown an uncontrolled power of indictment without prior committal proceedings in practice the power is used for two purposes. The first use is when a man has been committed for trail for an offence and the depositions disclose evidence of a different…or of other offences; in such circumstances it is convenient and just….

The second use which has become increasingly common is when a man consents to plead guilty to a charge in respect of which no committal proceedings whatever had been taken…he consents to plead guilty…he has deprived himself of the protection of the magistrate…In most of such simple cases there is no danger of injustice being done….”

In Webb’s case again , per Justice Stanley at p 451:

“The present method of using ex officio indictments seems to be an attempt to devise a practice as effective as the English practice whereby a prisoner can have certain “other offences” taken into account when he is being sentenced for one similar offence. When strictly used, this ex officio method is a manifestly convenient way of saving expense, avoid delay and preventing congestion in the courts…”

Justice Stanley was discussing offences for which “he professes his willingness to plead guilty”.

R v His Honour Judge Grant-Taylor and the Attorney General ex parte Johnson (1980) Qd R 387 considered the presentation of an ex officio indictment when a person charged with an indictable offence was discharged at committal but then faced the presentation of an ex officio indictment. The charge was one of orally demanding money without reasonable or probable cause by threats. That case is distinguishable for reason that the prosecutor in the Magistrates Court declined to call three witnesses whom he stated were among the witnesses he intended to call at the commencement of the committal proceedings. According to the prosecution those witnesses “appeared to be relevant (if at all) to the element of “without reasonable and probable cause.”1 The Magistrate determined that the area the Crown case was wanting was in satisfying the matter of reasonable or probable cause and for that reason he found insufficient evidence.2

Johnson’s case supports the law that that it is not within the province of a judge to direct that an indictment not be presented nor is the court able to refuse to accept it when it is presented. However, the Court can consider whether there has been an abuse of the process of the Court.

In Johnson, no such abuse of process was identified or accepted by the court. The court considered Webb’s case and Justice Campbell made comment that the judgment of Philp J in Webb should not be taken as an exhaustive statement of the circumstances in which ex officio indictments can be presented.3 Campbell J said:

“I have no doubt that the right conferred on the Crown Law officers by s.561 should be exercised cautiously and with restraint but there are no statutory restrictions.”4

Campbell J went on to quote the Lord Chief Justice in Reg v Epping and Harlow Justices, ex parte Massaro [1973] 2 W.L.R. 158 at p 160:

“..I think that it is clear that the function of committal proceedings is to ensure that no one shall stand his trial unless a prima facie case has been made out. The prosecution has the duty of making out a prima facie case, and if they wish for reasons such as the present not to call one particular witness, even though a very important witness, at the committal proceedings, that in my judgment is a matter within their discretion…”5

Finally, Barton, Gruzman & ors v The Queen, Attorney General for NSW, Walker and ors (1980) 147 CLR 75, is a High Court authority considering the decision of the Attorney General under section 5 of the Australian Courts Act 1828 to present an ex officio indictment.

The facts considered in Barton’s case were that between March and June 1977 committal proceedings in respect of what were termed Brins charges were heard. On the 27 June 1977 the Magistrate ruled no prima facie case was made out and dismissed the Brins charges.

On 28 June 1977 committal proceedings commenced before the same magistrate on what were termed the Harbour-side charges. At the close of the prosecutor’s case the Magistrate ruled that a prima facie case had been made out. At the close of that case, and after that ruling, the Bartons went into evidence and closed their case on the 29 September 1978. The prosecutor indicated he would call a witness in reply on the resumption of the hearing but when the hearing was resumed on the 23 October 1978, the prosecutor informed the Magistrate that an ex officio indictment in respect of the charges had that day been filed. On the request of counsel for the prosecution the Magistrate marked the court file “withdrawn and dismissed.”

There were further charges referred to as the Bounty charges which were also charged ex officio, with the charges in the magistrate court being withdrawn prior to any committal hearing. Interestingly, no ex officio indictment was presented on the Brins charges for which the accused was discharged by the Magistrate after completed committal proceedings.

Justices Gibbs and Mason in a joint judgment stated that:

“Section 5 now needs to be read in conjunction with the provisions of Div.1 of Pt IV of the Justices Act, which prescribes the procedure before Justices (now magistrates) in relation to indictable offences.6 …

Usually it is after the defendant has been committed for trial that the Attorney-General decides whether he will file an indictment…but there is nothing to prevent …filing an indictment before….committal proceedings…have been commenced or completed.7 ”

And further on:

“It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused’s guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced [8] …though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue.9

….the court has other powers to ensure that a person charged with a crime is fairly dealt with.”10

And further:

“It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General’s decision to commence criminal proceedings but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial…11

There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial…12

…the courts have a general power to prevent unfairness to the accused, even to the extent of preventing an abuse of process resulting from the prosecution of proceedings brought without reasonable grounds….13

…every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court.14

At page 99:

“…the principal purpose of (preliminary examination) is to ensure that the accused person will not be brought to trial unless a prima facie case is shown or there is sufficient evidence to warrant his being put on trial or the evidence raises a strong or probable presumption of guilt…For this reason, apart from any other, committal proceedings constitute an important element in the protection which the criminal process gives to an accused person…15

…But in general, once the magistrate has so found (that there is no prima facie case), that is an end of the matter16 …

…Lord Devlin in The Criminal Prosecution in England was able to describe committal proceedings as “an essential safeguard against wanton or misconceived prosecutions (p92) (emphasis added). This comment reflects the nature of committal proceedings and the protection which they give to the accused viz. the need for the Crown witnesses to give their evidence on oath, the opportunity to cross-examine, to present a case and the possibility that the magistrate will not commit.17

…It is now accepted in England and Australia that committal proceedings are an important element in our system of criminal justice. They constitute such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair. For us to say, as has been suggested, that the courts are concerned only with the conduct of the trial itself, considered quite independently of the committal proceedings, would be to turn our backs on the development of the criminal process and to ignore the function of the preliminary examination and its relationship to the trial.. To deny an accused the benefit of committal proceedings is to deprive him of the valuable protection uniformly available to other accused persons, which is of great advantage to him, whether in terminating the proceedings before trial or at trial.”18

In Walton v Gardiner (1993) 177 CLR 378, a majority of the High Court held (at 393) that the further prosecution of a case which had already been disposed of by earlier proceedings would constitute a case of abuse of process, such that those later proceedings should be permanently stayed.

In Summary

As can be seen from the authorities, whilst an ex officio indictment can be lawfully presented, even after committal proceedings, the question that the courts can and will consider is whether proceedings should be stayed on the grounds of an abuse of process.

Use of these Authorities and Current Committal Processes

Since the amendment to the procedures in September 2010 (the Moynihan Review amendments), there has been a change in the process and procedure of committal hearings, seeking to limit preliminary examination. The authorities cited here may assist criminal law practitioners mount arguments in support of applications to cross examine witnesses at committal. Should such applications be refused, one might well be successful in legal argument before the relevant trial court in seeking a preliminary examination before trial, to ensure the accused receives a fair trial.

Outcome of  “ Crown vs Bart re Complaint of Smithers”

The case of Bart & Smithers was actually a real one with names changed. In the real life case, a District Court Judge did find there was an abuse of process and the indictment was permanently stayed.19 To read the reported judgment of this “real” case, go to http://archive.sclqld.org.au/qjudgment/2011/QDC11-064.pdf

Tracyann Mossop

Footnotes

1. Page 387
2. Page 388
3. Ibid
4. At page 389
5. Ibid
6. At page 88
7. Page 89
8. See the speeches of Connelly v Director of Public Prosecutions [1964] AC 1254 and Director of Public Prosecutions v Humphrys [1977] AC 1Bottom of page 94, over to page 95
9. Page 95
10. Bottom of page 95 and over page 96
11. Page 96
12. Ibid, and see Connelly v Director of Public Prosecutions [1964] AC 1254 and Director of Public Prosecutions v Humphrys [1977] AC 1
13. Ibid, and see Mills v Cooper [1967] 2 QB 459 at 467
14. Page 99
15. Page 99
16. Ibid.
17. Ibid
18.  R v Rollinson [2011] QDC 64