The Queen v Gesa; ex parte Attorney-General
[2000] QCA 111
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- Unreported Judgment
- Appeal Determined (QCA)
- The Queen v Gesa; ex parte Attorney-General[2000] QCA 111
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The Queen v Gesa; ex parte Attorney-General[2000] QCA 111
Reported at [2001] 2 Qd R 72
The Queen v Gesa; ex parte Attorney-General[2000] QCA 111
Reported at [2001] 2 Qd R 72
SUPREME COURT OF QUEENSLAND
CITATION: | R v Gesa and Nona; ex parte A-G [2000] QCA 111 |
PARTIES: | R v GESA, George Agnew NONA, Benjamin Ali (respondents) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant) |
FILE NO/S: | CA No 314 of 1999 CA No 315 of 1999 DC No 583 of 1998 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by Attorney-General (Qld) |
ORIGINATING COURT: | District Court at Cairns |
DELIVERED ON: | 4 April 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 February 2000 |
JUDGES: | Davies and Thomas JJA and Wilson J Judgment of the Court |
ORDER: | Appeal allowed. Set aside the order staying proceedings on the indictment. |
CATCHWORDS: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – GENERALLY – Attorney-General appealed against an order staying the proceedings – where appeal raises questions of criminal practice – whether the sufficiency of the Crown case can be determined pre-trial under s 592A – whether s 592A should be given a broad interpretation Torres Strait Fisheries Act 1984 (Cth), Schedule, Article 10 par 3 Criminal Code (Qld), s 22, s 592A, s 596 Barton v The Queen (1980) 147 CLR 75, considered Bass v Permanent Trustee [1999] HCA 9, considered Doney v The Queen (1990) 171 CLR 207, applied Jago v District Court (NSW) (1989) 168 CLR 23, considered R v His Honour Judge Noud, ex parte McNamara [1991] 2 QdR 86, considered R v Leece (1996) 65 FCR 544, applied R v Puplett [1968] QWN 16, applied R v Sutton [1986] 2 QdR 72, applied |
COUNSEL: | Mr M J Byrne QC for appellant Mr B G Devereaux for respondents |
SOLICITORS: | Director of Public Prosecutions (Queensland) for appellant Legal Aid Queensland for respondents |
- THE COURT: This is an appeal by the Attorney-General against a decision of a District Court judge staying an indictment.
- Following committal proceedings, an indictment was presented on 29 January 1999 charging the respondents with armed robbery in company.
- On 12 April 1999, before a date for trial had been fixed, the respondents, applicants in the District Court, asked Healy QC DCJ to rule, as a matter of law, that the Crown could not succeed, on the basis that it could not exclude beyond reasonable doubt an honest claim of right. His Honour apparently had access to the depositions and/or statements presented at the committal, although these are not in the appeal record.
- The circumstances of the alleged offence can be gleaned from the transcript of the proceeding before his Honour. The respondents are Torres Strait Islanders. An incident occurred in the Coral Sea when they allegedly stole a quantity of fish with threats of actual violence and when armed with a crayfish spear. The complainants were commercial fishermen licensed to fish in the area.
- The incident took place in a protected zone established by a treaty between Australia and New Guinea. The treaty is part of Australian domestic law pursuant to the Torres Strait Fisheries Act 1984 (Cth). The principal purpose of the protected zone is to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants, including their traditional fishing and free movement.[1] Further, s 14 of the Fisheries Act 1994 (Qld) provides that a Torres Strait Islander may take, use or keep fisheries resources or use fish habitats under Island custom.
- The respondents' counsel submitted to Healy QC DCJ that it would be impossible for the Crown to establish beyond reasonable doubt that they were not exercising a bona fide claim of right.[2] His Honour was asked to make a ruling to that effect pursuant to s 592A of the Criminal Code, which provides:
"(1) If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial.
(2) Without limiting subsection (1) a direction or ruling may be given in relation to –
- the quashing or staying of the indictment; or
- the joinder of accused or joinder of charges ; or
- the provision of a statement, report, proof of evidence or other information; or
- noting of admissions and issues the parties agree are relevant to the trial or sentence; or
- deciding questions of law including the admissibility of evidence and any step that must be taken if any evidence is not to be admitted; or
- ascertaining whether a defence of insanity or diminished responsibility or any other question of a psychiatric nature is to be raised; or
- the psychiatric or other medical examination of the accused; or
- the exchange of medical, psychiatric and other expert reports; or
- the reference of the accused to the Mental Health Tribunal; or
- the date of trial and directing that a date for trial is not to be fixed until it is known whether the accused proposes to rely on a defence of insanity or diminished responsibility or any other question of a psychiatric nature; or
- the return of subpoenas and notices to Crown witnesses; or
- encouraging the parties to narrow the issues and any other administrative arrangements to assist the speedy disposition of the trial.
(3) A direction or ruling is binding unless the trial judge, for special reason, gives leave to re-open the direction or ruling.
(4) A direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence."
- At the outset his Honour was asked to rule whether the prosecution could exclude a bona fide claim of right on the material which was already before the Court. His Honour then asked counsel for the Crown whether she was happy for the matter to be dealt with in that way and she agreed that she was. It might reasonably have been thought that, in so agreeing, counsel for the Crown was conceding that there was no further evidence which could improve the Crown case. However that turned out not to be so.
- During the course of argument it emerged that, not only was the Crown contending that, on the transcript and statements before the Court, it could exclude an honest claim of right. It was also contending that cross-examination and further evidence would exclude that defence. At this point in the argument his Honour said:
"If that's your position then isn't the proper course to start the trial and then we get to the end and then let me rule? I mean, why are we having this exercise? I mean, I'm not here to rule on whether or not – if you say that you've got sufficient evidence in that regard to go to the jury at the end of the day maybe you have, maybe you haven't. I don't know. After cross-examination perhaps the situation would change. Why are we engaged in this exercise if that's the case?"
- Ultimately his Honour purported to rule that, on the material before him, the Crown could not exclude honest claim of right beyond reasonable doubt. In doing so he said to the prosecutor:
"It's up to you. If you want to present the indictment and insist that it go to a jury, then it will if that's what you want to do."
The indictment was endorsed by his Honour's associate:
"Matter adjourned to the next sittings. Notices to Crown witnesses and bail of each accused is enlarged."
- Subsequently the matter was listed for trial. On 16 August 1999 White DCJ ordered that the proceedings on the indictment be stayed. He interpreted Healy QC DCJ's ruling as a ruling that –
"... there was no case to answer in that there was no evidence upon which a jury could be satisfied beyond reasonable doubt that the accused were not exercising an honest claim of right in taking the fish when they did."
He found no "special reason" within s 592A(3) to reopen the ruling.
- The Attorney-General has appealed against the order staying the proceedings.
- The order made by White DCJ involves a misinterpretation of what Healy QC DCJ purported to do. His Honour purported to do no more than rule that, on the evidence presented at the committal, the Crown could not satisfy a jury beyond reasonable doubt that the accused had not been acting under an honest claim of right. Accordingly, White DCJ's order staying the indictment should be set aside.
- This appeal raises an important question of criminal practice: can the sufficiency of the Crown case be determined pre-trial on an application under s 592A? That provision gives a judge jurisdiction to give a direction or ruling "as to the conduct of the trial" once an indictment has been presented and before the commencement of the trial. Section 592A(2) contains a non-exhaustive list of the matters in relation to which such a direction or ruling may be given. They include –
"(a)the quashing or staying of the indictment; or
(b)the joinder of accused or joinder of charges; or
...
(e)deciding questions of law including the admissibility of evidence and any step that must be taken if any evidence is not admitted."
- The section is relatively new.[3] Its primary purpose, as appears on its face,[4] is to permit directions and rulings to be given and made in advance of a trial, thus overcoming the problems highlighted in R v His Honour Judge Noud, ex parte McNamara.[5] The question arises, however, as to whether the words "as to the conduct of the trial" in s 592A(1) confine its operation to directions and rulings in advance of but in contemplation of a trial or whether it encompasses also rulings which may determine whether a trial will take place as well as those which contemplate its doing so. Read in isolation, s 592A(1) appears to be more consistent with the former construction. But when read with s 592A(2), especially par (a), par (b) and par (e) thereof, it seems plainly to bear the wider latter construction.
- The power to make rulings "in relation to ... the quashing or staying of the indictment" is not merely a power to quash or stay an indictment. Before this section was enacted a court could quash[6] or stay[7] an indictment. It includes a power to make rulings on a question of law the consequence of which, if decided one way, would justify an application to quash or stay an indictment; such a ruling would be one in relation to the quashing or staying of the indictment. More broadly, the power to make rulings "in relation to ... deciding questions of law" includes a power to make rulings which, if decided one way, will result in termination of the proceedings before trial by means other than quashing or staying the indictment. The section should not be given a narrow interpretation.
- However such a ruling was impossible in the present case. Once counsel for the Crown had indicated that she intended to cross-examine and call further evidence on the question of honest mistake of right, there was no ruling which could be given which would be final on that issue. A final decision upon established or agreed facts is of the essence of the exercise of judicial power.[8]
- There may have been another reason why, in any event, such a decision could not have been made. Because neither the transcript of the committal proceedings nor the statements which were before his Honour Judge Healy were before this Court it is impossible to say whether the facts relevant to honest claim of right were, on that transcript and those statements, undisputed and admitted of only one relevant inference. But it would be only where the evidence is incapable of supporting a verdict of guilty[9] that a ruling could be made which could result in termination of the proceedings.
- Such a case may arise where the facts are either agreed or undisputed, where those facts are incapable of supporting a guilty verdict and where the Crown concedes that those facts represent the highest that the Crown case can be put. It will therefore only be where the facts are agreed or undisputed and where the Crown concedes that those facts represent the highest that the Crown case can be put that such a ruling may be sought. Even then, of course, the accused person will fail in his or her application where those facts, or inferences from those facts, are capable of supporting a guilty verdict. Such a ruling is one of law. If the judge considers that the material is not in a satisfactory state to enable a ruling on the capacity of the evidence to sustain a conviction he or she may decline to proceed with the application.
- The appeal should be allowed and the order staying proceedings should be set aside.
Footnotes
[1]Torres Strait Fisheries Act 1984 (Cth), Schedule, Article 10 par 3.
[2]Criminal Code (Qld) s 22.
[3] It commenced operation on 1 July 1997. Analogues in Australia are Crimes (Criminal Trials) Act 1999 (Vic) s 5, Criminal Code (WA) s 611A, Criminal Code (Tas) s 361A, Criminal Law Consolidation Act 1935 (SA) s 285A and Evidence Act (NT) s 26L. See also Criminal Procedure and Investigations Act 1996 (UK) s 39 and s 40. None of these specifically permits a ruling in relation to the quashing or staying of an indictment or the joinder of charges; and all except the Western Australian provision apply only after the accused person has been called on to plead.
[4] And as the explanatory notes imply.
[5] [1991] 2 QdR 86.
[6]Criminal Code (Qld) s 596.
[7]Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23.
[8] Cf Bass v Permanent Trustee [1999] HCA 9 at [45] – [56].
[9] Cf Doney v The Queen (1990) 171 CLR 207 at 214 – 215; R v Leece (1996) 65 FCR 544 at 556; R v Puplett [1968] QWN 16; and R v Sutton [1986] 2 QdR 72.