R v Dexter[2002] QCA 540

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  The appellant was convicted in the Brisbane District Court after a lengthy trial of 26 counts of making a false promise with intent to defraud under s 427(1) Criminal Code (Qld),[1] four counts of making a false pretence with intent to defraud under s 427(1) Criminal Code (Qld)[2] and one count of fraud under s 408C(1)(c) Criminal Code (Qld).[3]  He was acquitted on a further 17 counts, all brought under the Criminal Code (Qld).  He was sentenced to ten years imprisonment.  He now appeals only against his conviction. 

[2] The appellant, represented by Mr Sofronoff QC and Mr Moynihan, instructed by Legal Aid Queensland, abandons his extensive original grounds of appeal and seeks leave to argue only one new ground of appeal, that the Commonwealth Director of Public Prosecutions ("the CDPP") had no lawful authority to indict and prosecute the appellant either in right of the Commonwealth or in right of the State.  The respondent, represented by Mr A MacSporran and Mr Keim, instructed by the CDPP, opposes the granting of leave to amend the grounds of appeal.  The respondent has had notice of the proposed amended ground of appeal for over a month before this hearing and has prepared detailed responsive submissions based on that amended ground.  In those circumstances, I would give leave to amend the grounds of appeal in the terms sought.

Background Facts

[3] The prosecution case at trial was that the offences arose from the appellant's management from 1993 of a bridging finance business operating as The Wattle Group.  The appellant, an accountant, initially marketed the business to potential investors by personally making oral and documented representations that it provided quick approval for short term loans at high interest rates.  As the business grew, the appellant recruited others to market The Wattle Group on his behalf, often through the companies Anscor Pty Ltd, Hinatorie Pty Ltd, Mackay and Allen Pty Ltd and Australian Secured Mortgages Pty Ltd.  The appellant and his agents continued to make these representations about The Wattle Group to investors (including companies) who signed loan agreements containing an express condition consistent with these representations.  During 1994 the appellant ceased to operate The Wattle Group primarily for bridging finance and commenced supplying long-term loans and joint venture funds with Wattle Group investment money to The Foundation Group Pty Ltd, a company of which he was the sole director.  The appellant also used fresh Wattle Group investment funds to repay earlier investors their principal and interest.  The prosecution alleged the appellant obtained money from investors by deliberately failing to inform them that the Wattle Group was no longer meaningfully operating as a bridging finance business.  The prosecution case included a careful analysis of the financial records of The Wattle Group and The Foundation Group Pty Ltd.

[4] Under s 13 Australian Securities and Investment Commission Act 1989 (Cth) ("the ASC Law") Australian Securities and Investment Commission ("ASIC") has general powers of investigation where it has reason to suspect that there may have been a contravention of a national scheme law or a law of the Commonwealth or a State or Territory that concerns the management or affairs of a body corporate or managed scheme or involves fraud or dishonesty relating to the management or affairs of a body corporate or managed scheme.  In December 1997 ASIC commenced an investigation of the appellant's business activities and later charged the appellant with 64 offences under subsections 1000(1)(a) and (b)[4] and s 1311[5] Corporations Law Queensland.[6]

[5] On 6 September 1999, the appellant faced committal proceedings commenced by a complaint brought by Stephen Thomas Glynn, "a duly appointed delegate" of ASIC,[7] charging 61 offences under those subsections.  The Commonwealth Director of Public Prosecutions ("CDPP") briefed Mr MacSporran, a barrister in private practice in Queensland, to conduct the prosecution.  The appellant was committed for trial on all offences on 6 September 1999.

[6] The CDPP and the Queensland Director of Public Prosecutions ("QDPP") then had in place an agreement headed, "Arrangements for Joint  Queensland/Commonwealth Trials", to allow either organisation to prosecute Commonwealth and State offences on a single indictment.  The agreement required a case by case decision and mutual consent.  It included general guidelines for deciding which organisation should have conduct of proceedings and included the following:

"(ii)There may be cases, however, where a particular indictment is one of a number arising out of the one set of circumstances and the overall indictments are predominantly for State or Commonwealth offences. All such indictments should preferably be conducted by the organisation whose charges predominate, even though any individual indictment would otherwise be conducted by the other organisation. In determining which offences predominate the relative seriousness shall be considered, in preference to the numerical number of offences. These considerations may even give rise to the Queensland DPP prosecuting an indictment that contains only a Commonwealth offence and vice versa.

(iii)There will also be cases, where, for a variety of reasons (for example, the enquiries may have been conducted entirely by one police force or the other) it will be agreed that the conduct of the prosecution is more naturally the responsibility of one organisation, even though the preceding considerations would suggest the other result.

(iv)The convenience of the respective organisations may also be considered.

…

(8)… the organisation that conducted the trial will normally conduct, or respond to, any appeal proceedings that follow. …"

[7] The CDPP and the QDPP also agreed in a letter of 29 August 1991 from the CDPP's Deputy Director to the QDPP in these terms:

"Where [ASIC] and Commonwealth police have investigated a matter which is primarily one involving a Criminal Code offence of the kind described in paragraph 13(1)(b) of the ASC Law, the Commonwealth Director of Public Prosecutions will conduct the prosecution to the completion of the committal hearing and thereafter refer the matter to you for decision as to whether you or the Commonwealth DPP will undertake the prosecution to trial or plea."

[8] On 18 October 1999, the CDPP presented an indictment in the Brisbane District Court charging the appellant with 42 offences under the Corporations Law Queensland.  The CDPP was entitled to institute and prosecute these charges on indictment as offences against Commonwealth law referred by the Queensland parliament under s 51(xxxvii) Commonwealth Constitution: see Commonwealth Director of Public Prosecutions v Fukusato.[8]

[9] On 31 August 2000, the Assistant Director, Commercial Prosecutions, CDPP wrote to the Deputy Director of the QDPP seeking:

"… consent to the presenting of an ex officio indictment containing 17 counts of Making Wilfully False Promises and nine counts of False Pretences under the now repealed section 427 of the Queensland Criminal Code, and to this office conducting the prosecution of Mr Dexter in the Brisbane District Court.

The matter arises out of an investigation conducted by the Australian Securities and Investment Commission.  The indictment presently before the Court was presented on 18 October 1999 following a committal hearing in the Brisbane Magistrates Court.  It contains 42 counts alleging offences against section 1000(1)(a) or (b) of the Corporations Law of Fraudulently Inducing Persons to Deal in Securities.

As a result of the constitutional law difficulties highlighted in the High Court decision of Hughes v Director of Public Prosecutions (2000) HCA 22 it is considered preferable to substitute State charges of Making Wilfully False Promises and False Pretences in lieu of those Corporations Law charges which allege the making of a false promise or statement contrary to section 1000(1)(a).  It is not proposed that any Criminal Code counts be substituted for the sixteen section 1000(1)(b) Corporations Law counts alleging the dishonest concealing of material facts.  The case proposed to be presented would not change materially if charges pursuant to the now repealed section 427 of the Queensland Criminal Code are substituted.

The case concerns the accused's role in promoting an investment scheme called the Wattle Scheme over the period 1/7/94-26/3/98, where he made certain promises and statements of high interest rates to induce investing members of the public to part with their funds.  The scheme was structured such that Mr Dexter operated the scheme and received all of the money into a bank account controlled by him.  He did not deal personally with many of the investors.  Instead he entered into agreements with a number of companies who were the ones who solicited funds and whose staff dealt with the investors.

In reality the scheme was only successful and able to continue to operate by Mr Dexter's use of investors' funds to pay the high rates of return promised to earlier investors.  He also used a significant amount of the money to operate businesses controlled by him by making interest free loans to those businesses from funds invested with the Wattle Scheme by members of the public.  A detailed financial analysis carried out indicates that of a total sum of $198 million deposited by investors with the Wattle Fund, almost $84 million was used to pay investors' interest (ie. without ever having been invested as promised) and refunds and $69 million was used to fund businesses controlled by Mr Dexter.

The trial is expected to run for eight weeks and there are over 70 witnesses, 11 of whom are from interstate and there are about 4,500 exhibits.  The trial is expected to commence in early February 2001. 

I enclose a copy of the indictment presently before the court and the draft ex officio indictment. 

…"

[10]  The draft indictment attached to the letter was brought in the name of the Commonwealth Director of Public Prosecutions and although not signed, ended with the name "FRANCES JAMES WALSH For and on behalf of the Commonwealth Director of Public Prosecutions".

[11]  On 1 September 2000, the QDPP gave permission to the CDPP to present that ex-officio indictment.

[12]  It is not entirely clear whether that indictment was presented to the District Court because on 28 September the CDPP requested permission from the QDPP to present a different ex officio indictment charging the appellant with 41 Queensland offences under s 427(1) Criminal Code (Qld) and seven offences under s 408C Criminal Code (Qld) to replace the indictment then before the District Court alleging breaches of the Corporations Law.  The indictment contained no Commonwealth offences.  This indictment was to be brought in the name of "ALLAN MACSPORRAN, duly appointed to prosecute in this behalf for Her Majesty the Queen"; the words "ALLAN MACSPORRAN" were printed on its final page and attached to the indictment was a back or cover sheet on which was noted "Commonwealth Director of Public Prosecutions" and the CDPP's contact officer, address and telephone number. 

[13]  On 28 September 2000, the Deputy Director of the QDPP consented to the presentation of an indictment in that form.  It is not suggested that he did not act at all times with the authority of the QDPP.  Although not specified in his concise letter of consent, in the circumstances this was effectively a consent to Mr MacSporran signing and presenting an indictment in that form and to the CDPP preparing and funding its prosecution and instructing Mr MacSporran.

[14]  An indictment in that form was signed and presented in the District Court on 3 November 2000 by Mr MacSporran who, at all relevant times, held a commission to prosecute from the Queensland Governor in Council under ss 560(2) and 561(2) Criminal Code (Qld).  No objection was taken to the indictment at its presentation or at any stage of the trial.[9]  The trial transcript recorded "Mr A MacSporran (instructed by the Commonwealth Director of Public Prosecutions)" as appearing for the prosecution at the trial.

[15]  It is common ground that the Commonwealth has fully funded the prosecution of this matter.

[16]  The Federal Attorney-General consented to the CDPP, Mr Bugg QC, holding appointments to prosecute offences against the laws of each and every State under s 6(1)(m) CDPP Act.  Mr Bugg, like Mr MacSporran, held a commission to prosecute on behalf of the Attorney-General for the State of Queensland and to present indictments under ss 560(2) and 561(2) Criminal Code (Qld).

The indictment

[17]  The appellant contends that the Commonwealth's involvement in the institution and presentation of this indictment charging only Queensland offences makes the indictment a nullity and the convictions based upon it must be set aside.

[18]  There can be no doubt that only the Crown in the right of Queensland can prosecute the offences contained in this indictment, which charged only counts against the Criminal Code (Qld). 

[19]  The Criminal Code (Qld) relevantly provides:

"Presenting Indictments

560. (1)When a person charged with an indictable offence has been committed for trial and it is intended to put the person on trial for the offence, the charges are to be reduced to writing in a document which is called an indictment.

(2)The indictment is to be signed and presented to the court by a Crown Law Officer or some other person appointed in that behalf by the Governor in Council.

…

Ex officio informations

561. (1)A Crown Law Officer may 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)An officer appointed by the Governor in Council to present indictments in any court of criminal jurisdiction may 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 …".

"Crown Law Officer" is defined as meaning "the Attorney-General or Director of Public Prosecutions".[10]

[20]  Section 560 Criminal Code (Qld) authorises the Queensland Attorney-General, the QDPP or a person with the necessary commission from the Queensland Governor in Council under s 560(2) Criminal Code (Qld) to sign and present the indictment upon which the appellant was convicted: R v Fukusato.[11]  It is not contended that anything turns on the difference between the charges on which the appellant was committed and the charges presented in the ex officio indictment; proof of both Commonwealth and Queensland offences depended on the same factual matrix.

[21]  Mr MacSporran, an experienced barrister in private practice, was a person appointed by the Governor in Council under ss 560(2) and 561(2) Criminal Code (Qld).  His commission, it seems, was in the usual form, which permitted him to sign in his own name and present indictments "in the absence of the Attorney-General for the State of Queensland".  In so doing, he acts on behalf of and therefore subject to the Attorney's instructions, provided these do not conflict with his overriding duties as a Crown Prosecutor to act independently, fairly and in the public interest.[12]  In practice, those with commissions to prosecute under s 560(2) are generally briefed by the QDPP, a position created by the Director of Public Prosecutions Act 1984 (Qld) ("QDPP Act"), which establishes a framework for prosecuting Queensland offences.  Nothing in the QDPP Act, however, derogates from the Attorney-General's traditional responsibilities in the discharge of the Sovereign's duty to prosecute crime.[13]  Sections 560 and 561 Criminal Code (Qld) envisage that the holder of a commission to prosecute under those sections, (subject always to the Crown Prosecutor's duty to act independently, fairly and in the public interest), acts on behalf of the Queensland Attorney-General or is instructed by the QDPP, who is responsible to the Attorney.[14]

[22]  The appellant emphasises the notation on the back of the cover sheet, which referred to the CDPP; to the CDPP's funding of the prosecution and to the CDPP's granting of indemnities from prosecution, contending that this demonstrates the prosecution was on behalf of the Commonwealth.  Nothing in the Criminal Code or in the Criminal Practice Rules requires an indictment to have a cover or back sheet; it is not part of the indictment and the validity of the indictment is not affected by these notations on the cover or back sheet: see R v Holden.[15]  The fact that the Commonwealth funded the prosecution of Queensland offences, that the CDPP purported to indemnify witnesses under s 9(6) CDPP Act and that Mr MacSporran asked at the end of the trial for the exhibits be returned to the CDPP, does not affect the validity of the indictment itself.

[23]  No objection was taken to the indictment at its presentation or at any time during the trial. On its face, the indictment was properly signed and presented by an authorised person under ss 560(2) and 561(2) Criminal Code (Qld) on behalf of the State Crown. The QDPP through its Deputy Director effectively consented to Mr MacSporran signing and presenting the indictment. There is no suggestion Mr MacSporran did not properly exercise his discretion in instituting the prosecution. Mr MacSporran signed and presented the indictment in his own name in the absence of the Queensland Attorney-General, consistent with his commission. The indictment was not on its face a nullity and the convictions resulting from it are not required to be set aside on that basis.

The lawfulness of the CDPP conduct of the prosecution case in the District Court.

[24]  The appellant also contends that the CDPP or counsel retained by him had no lawful authority to prosecute the appellant and to fund that prosecution; the combination of the provisions of the CDPP Act, ss 560 and 561 Criminal Code (Qld) and the administrative agreement between the CDPP and the QDPP do not provide the necessary lawful authority.  The appellant contends that s 6(1)(m) CDPP Act is so wide it allows or even requires the Commonwealth to prosecute all State offences; the section cannot be read down under s 15A Acts Interpretation Act 1901 (Cth);  the convictions are tainted by this unauthorised prosecution and must be set aside.

[25]  The prosecution of the indicted Queensland offences by the CDPP would not be challengeable were they properly joined with a Commonwealth offence or offences[16] but here, unlike in Fukusato, there was no Commonwealth offence joined on this indictment. Although the CDPP did not present or sign the indictment, in preparing, funding and instructing Mr MacSporran, the CDPP was certainly conducting the prosecution of the offences.  If the CDPP was acting unlawfully, it may be that those convictions must be set aside.  The lawfulness of the CDPP to carry on the prosecution is also relevant to its right to respond to this appeal,[17] although the appellant has not raised this issue.

(a)The lawfulness of the delegation of prosecutory authority from the QDPP to the CDPP.

[26]  If the CDPP's conduct of the prosecution was lawful, this was achieved through a combination of the agreement between the CDPP and the QDPP, the QDPP's informed consent to that course, and ss 6(1)(m), (n) and 15 CDPP Act.

[27]  Under s 6 Director of Public Prosecutions Act 1983 ("CDPP Act") the functions of the CDPP include:

"(a)to institute prosecutions on indictment for indictable offences against the laws of the Commonwealth;

(b)to carry on prosecution of the kind referred to in paragraph (a) … whether or not instituted by the Director …;

(c)to institute proceedings for the commitment of persons for trial in respect of indictable offences against the laws of the Commonwealth;

…

(e)to carry on proceedings of a kind referred to in paragraph (c) … (whether or not instituted by the Director);

…

(m)where the Director, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State – to institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences; and

(ma)if the Director is authorised by or under a law of a State to institute and carry on appeals arising out of prosecutions of offences against the laws of the State, being prosecutions by the Director as mentioned in paragraph (m) or by members of the staff of the Office as mentioned in sub-section 17(1) – to institute and carry on such appeals in accordance with requirements of or under that law; and

(n)to do anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (m) …."

[28]  Section 15 of the CDPP Act relevantly provides that:

"(1)In:

(a)proceedings:

(i)instituted, taken over or carried on by the Director;

…

…

(c)proceedings by way of appeal from, or otherwise arising out of, proceedings of a kind referred to in paragraph (a) …

the Director may appear in person or may be represented:

…

(e)by counsel or solicitor;

…".

[29]  As the CDPP had the consent of the Commonwealth Attorney-General to hold an appointment to prosecute offences against the laws of Queensland under s 6(1)(m) CDPP Act (and held a commission to prosecute under s 560(2) Criminal Code (Qld)) the CDPP's functions included "to institute and carry on … prosecutions" for Queensland.  The term "carry on" is not defined in the CDPP Act.  The meaning of the phrase in the Macquarie Dictionary[18] is "to manage; conduct;…".  Although the CDPP did not institute this prosecution on indictment he did, with the consent of the QDPP, carry on the prosecution in preparing the case and briefing and instructing Mr MacSporran.  Section 6(1)(m) CDPP Act does not limit the function of the CDPP to the conduct of Queensland prosecutions which he has also personally instituted (that is, where he has signed and presented the indictment); it also includes the carrying on of prosecutions, which incorporates the preparation and management of a prosecution case.[19] 

[30]  The CDPP's commission under s 560 Criminal Code (Qld) was personal to him and s 6(1)(m) CDPP Act only authorised the institution and carrying on of Queensland prosecutions in accordance with the terms of that commission.  His commission authorised the CDPP in the absence of the Attorney-General for the State of Queensland to "sign in [his] own name and present indictments in respect of indictable offences and to prosecute the same for Her Majesty The Queen at any Sittings of the Supreme, Circuit and District Courts appointed to be held at any place within the State of Queensland."  It has never been the case that such a commission limits the holder to the prosecution of indictments signed and presented by the holder; it also allows the holder to prosecute all properly signed and presented valid indictments.  The words "the same" refer to "indictments in respect of indictable offences"; they are not limited to indictments in respect of indictable offences signed and presented by the holder.  The terms of the CDPP's commission to prosecute under s 560(2) Criminal Code (Qld) allowed him to carry on the prosecution of the indictment signed and presented by Mr MacSporran, who also held a commission to prosecute under s 560 Criminal Code (Qld).  The words "carry on … prosecutions" in s 6(1)(m) CDPP Act and "prosecute" in the commission are not limited to the adversarial conduct of the case in court but include giving advice and preparation

[31]  The CDPP has incidental powers to carry out his functions, including those in s 6(1)(m).[20]  Section 15 CDPP Act allows the CDPP in proceedings carried on by him to appear in person or be represented by counsel or solicitor.  Because of the personal nature of the CDPP's commission to prosecute Queensland indictable offences, he could not under s 15 CDPP Act authorise counsel or a solicitor to present an indictment for a Queensland offence.[21] But here Mr MacSporran, who was entitled to sign and present the indictment under s 560 Criminal Code (Qld), lawfully signed and presented the indictment with the informed consent of the QDPP.  Assuming there are no difficulties because of other issues raised by the appellant which I discuss below, the informed consent of the QDPP under the agreement and the terms of the CDPP's Queensland commission combined with the provisions of the CDPP Act which I have set out, entitled the CDPP to conduct the prosecution by preparing it in his office and having his officers instruct Mr MacSporran.

[32]  A State by its laws cannot unilaterally invest functions under that law in officers of the Commonwealth: Bond v The Queen;[22]  Byrnes v The Queen[23] and R v Hughes.[24]  The QDPP's delegation of prosecutory authority to the CDPP will only be lawful if there is power under the Commonwealth Constitution to support the authority under the CDPP Act to prosecute these Queensland offences: R v Hughes[25] and R v Kolaroff.[26]

[33]  In Hughes, the High Court recognised that, subject to the Commonwealth Constitution, in the exercise of the incidental power[27] parliament may permit Commonwealth officers holding statutory appointments to perform additional functions and accept additional appointments.  Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed:

"The DPP Act in a sense is supported by as many heads of powers as from time to time have been exercised by the parliament to create offences against Commonwealth laws.  State law may create offences in fields where it would have been competent for the Parliament of the Commonwealth to enter directly by its own offence creating legislation.  The power conferred by s 51(xx) with respect to foreign corporations and trading or financial corporations is an obvious example.  In such a situation, a federal law which specifies that certain Commonwealth officers have powers and functions expressed to be conferred by the State law with respect to the prosecution of State offences is a law with respect to that head of federal legislative power."[28]

[34]  It follows that the referral of the power to prosecute by the QDPP to the CDPP will be invalid unless the Queensland offences, (or at least some of them properly joined in the indictment[29]), were matters within or incidental to[30] a federal legislative power.

[35]  The respondent contends that the CDPP's receipt of prosecutory power under s 6(1)(m) CDPP Act is supported here by a number of heads of constitutional power, namely trading or financial corporations formed within the limits of the Commonwealth;[31] postal, telegraphic or other like services;[32] the banking power[33] and trade and commerce amongst the States.[34] 

[36]  Because the authority of the CDPP to carry on the prosecution was not raised at trial, the evidence was not directed at establishing that the offences concerned matters within a head or heads of federal legislative power.  Nevertheless, there is ample evidence demonstrating that at least many of these offences concerned constitutional corporations under s 51(xx) Commonwealth Constitution.  The offences were investigated under s 13 ASC Law by ASIC, whose officer brought the complaint instituting the prosecution at committal proceedings for offences against the Corporations Law.  The indicted Queensland offences were based on the same facts on which these Commonwealth charges were based.  The complainants in counts 10 to 18, 20 to 23, 34 to 36, 39 and 42 to 44 were all corporations formed within the limits of the Commonwealth. 

[37]  All offences but count 14 involved allegations that the appellant, with an intention to defraud, made a wilfully false promise or a false pretence to an individual or company to the effect that investment money would be used for short term loans, thereby inducing the individual or company to deliver money to the appellant. 

[38]  Count 14 alleged that the appellant dishonestly induced a corporation to deliver money to him.  The appellant agreed in cross examination that the Foundation Group Pty Ltd was incorporated as a company in around September 1994 for the purpose of receiving money from the Wattle Group;[35] the appellant was the sole director of the Foundation Group Pty Ltd. 

[39]  The prosecution case generally turned on the making of representations to induce the delivery of money through trading or financial corporations formed within the limits of the Commonwealth, namely Anscor Pty Ltd; Australian Secured Mortgages Pty Ltd; Mackay & Allen Pty Ltd and Hinatorie Pty Ltd.  A significant proportion of the money dishonestly obtained by the appellant was for the purposes of the Foundation Group Pty Ltd, a corporation formed within the limits of the Commonwealth which  was actively engaged in trading and finance.[36]

[40]  The appellant has not positively contended that the Foundation Group Pty Ltd or the companies through which the appellant acted in committing these offences were not corporations primarily engaged in trading or financial activities.  The regulation of the conduct of servants and agents of trading or financial corporations is a matter within the Commonwealth corporations power.  The facts set out amply demonstrate that the prosecution of the indicted State offences, or at least many of them, related to matters within s 51(xx) Commonwealth Constitution.  It is not contended that any of the charges were not properly joined.  The charges were either within the corporations power of the Commonwealth Constitution or sufficiently connected with those charges to be properly joinable.[37]  There was, therefore, sufficient constitutional power to allow the receipt of prosecutory authority by the CDPP from the QDPP under s 6(1)(m) CDPP Act. 

[41]  It is unnecessary to consider the other heads of federal legislative power also relied on by the respondent or to reach a concluded view as to whether s 6(1)(m) CDPP Act is further supported by the executive power (s 61 Commonwealth Constitution) and the incidental power (s 51(xxxix) Commonwealth Constitution[38]).

[42]  The appellant contends that Queensland legislation was necessary to establish a cooperative scheme allowing the CDPP under s 6(1)(m) CDPP Act to receive the power to prosecute these Queensland offences.

[43]  Unlike in Hughes[39] there was no State law conferring the power to prosecute on the CDPP.  The QDPP Act does not give specific power for the CDPP or his officers to be appointed as Queensland Crown prosecutors: cf s 32(3) Public Prosecutions Act 1994 (Vic) and R v Holden;[40] nor does it specifically authorise the QDPP to enter into agreements to delegate prosecutory powers to the CDPP.  On the other hand, although the QDPP Act sets out the powers of the QDPP, it does not purport to give the QDPP exclusive power to prosecute all Queensland offences.[41]

[44]  The administrative arrangement between the CDPP and the QDPP contemplated that the consideration on a case by case basis could result, not only in the presentation of a joint indictment containing both Commonwealth and State offences[42] to be prosecuted by either the CDPP or the QDPP, but also that the QDPP may consent to the CDPP prosecuting an indictment that contains only a Queensland offence or offences, for example where, as here, a matter was investigated by ASIC and the Commonwealth conducted the committal proceedings.  That was ultimately the agreement here because, for reasons which are not entirely clear, the CDPP preferred to substitute Queensland charges for all Commonwealth charges.  The Queensland charges were based on the same factual scenario as the Commonwealth charges.  The QDPP gave informed consent for Mr MacSporran to sign and present that indictment and to the CDPP to carry on its prosecution consistent with the terms of its earlier agreement with the CDPP.   

[45]  There seems to be no reason why a State must legislatively rather than executively refer power to prosecute under a head of federal legislative power to the Commonwealth; certainly s 6(1)(m) CDPP Act does not require it.[43]  Although Hughes[44] refers to the conferral of powers by State law, that is because there was such legislation in that case.  Hughes is not authority for the proposition that a State cannot transfer prosecutorial power executively, as in Fukusato.  The course agreed to by the CDPP and the QDPP here is consistent with common sense and the efficient use of Queensland and Commonwealth resources.  Although some States have specific enabling legislation, I am not persuaded that Queensland cannot refer executively the prosecutory power covered by a head of federal legislative power as it has here.  The prosecutory power was validly executively referred and lawfully received under s 6(1)(m) CDPP Act and then used through s 6(1)(n) and s 15 CDPP Act in the CDPP's conduct of the prosecution, both in preparing the case for trial in the District Court and in briefing Mr MacSporran.  This conclusion is not affected by the fact that the agreement between the CDPP and the QDPP was made before the enactment of s 6(1)(m) CDPP Act.

[46]  It follows that providing the QDPP has consented, consistent with the agreement,[45] the CDPP is also entitled to respond to this appeal.[46]

(b)Section 15A, Acts Interpretation Act 1901 (Cth) 

[47]  The appellant further contends the functions conferred on the CDPP under s 6(1)(m) CDPP Act  are not merely permissive; they require the prosecution of all State offences, including offences not within federal heads of legislative power.  Accepting that is so, s 15A Acts Interpretation Act 1901 (Cth) requires that if, after the excess exercise of legislative power is discarded any of the legislation is within power, the valid portion stands and must be given effect.[47] 

[48]  The appellant contends, however, that s 15A cannot have application, relying on the following comments of Chief Justice Latham in Pidoto v State of Victoria:[48]

"But if a law can be reduced to validity by adopting any one or more of a number of several possible limitations, and no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid.  In such a case the law cannot be saved by the Acts Interpretation Act.

… the Acts Interpretation Act does not authorise the Court, by adopting a standard criterion or test merely selected by itself, to redraft a statute or regulation so as to bring it within power and so preserve its validity."

[49]  To interpret s 6(1)(m) CDPP Act as applying only to the validly referred prosecution of State laws within a head of federal legislative power is not to adopt a test merely selected by the court or to redraft legislation so as to bring it within power.    It is both possible and desirable in the circumstances here to read down s 6(1)(m) CDPP Act to apply to the prosecution of Queensland offences by the CDPP only where the prosecution of those offences is validly referred and supported by a head of power under the Constitution: Hughes,[49] Re Nolan; ex parte Young[50] and Fukusato.[51].

Commonwealth funding of the prosecution

[50]  In these circumstances, where the offences prosecuted by the CDPP relate to a Commonwealth legislative head of power, or at least are properly joinable with such offences,[52] there can be no legitimate complaint that the Commonwealth has unlawfully expended Commonwealth resources in prosecuting State charges.  Section 81 Commonwealth Constitution requires that the Consolidated Revenue Fund be appropriated "for the purposes of the Commonwealth", a phrase which has been broadly interpreted by the courts[53] and includes the incidental power to the executive power.[54]  The expenditure is within or incidental to a Commonwealth head of power[55] and is authorised under the Commonwealth Constitution.

[51]  It follows that the CDPP was acting lawfully in preparing and funding the prosecution of the appellant on indictment and in instructing Mr MacSporran in the District Court and on this appeal. For the reasons given earlier, the indictment was not a nullity. I would dismiss the appeal.

Orders:

1.Leave given to amend the grounds of appeal;

2.Dismiss the appeal;

3.Refuse the application for leave to appeal against sentence.

[52]  DAVIES JA:  On 7 May 2001 the appellant was convicted after a trial in the District Court of 31 offences under the Criminal Code of Queensland.  They were 26 offences of making a wilfully false promise with intent to defraud contrary to s 427(1),[56] four of making a false pretence with intent to defraud contrary to the same provision and one of fraud contrary to s 408C.  He was sentenced to 10 years imprisonment.  He appealed against that conviction on a number of grounds all of which are now abandoned.  He seeks, in lieu, to substitute the following ground:

"That the Commonwealth Director of Public Prosecutions [CDPP] had no lawful authority to indict and prosecute the Appellant either in right of the Commonwealth or in right of the State".

[53]  The respondent opposed the application to amend in this way but conceded that the substance of this ground must be argued in order to determine whether the amendment should be allowed.  Accordingly the Court proceeded to hear full argument.  I would now grant leave to substitute that ground.

[54]  It is plain that the principal question in this Court is the validity of the indictment presented against the appellant.  If it was invalid the respondent does not appear to contend that the convictions may stand.  The question was, however, put more broadly by Mr Sofronoff QC for the appellant in the following terms:

"… whether the Commonwealth Director of Prosecutions, under his Act, is entitled to brief a State Crown prosecutor to prosecute a State offence, purportedly as he says, on behalf of the State Crown, when no Commonwealth charge has been charged jointly."

[55]  The facts relevant to those questions were agreed by the parties in the form of a statement of facts filed in this Court.  The main facts may be shortly stated.

[56]  On 9 December 1997 the Australian Securities and Investment Commission commenced an investigation into the appellant's business activities pursuant to s 30 of the Australian Securities and Investment Commission Law.  Then on 23 December 1998, presumably as a result of that investigation, it charged the appellant with offences against s 1000(1)(a) and s 1311 and against s 1000(1)(b) and s 1311 of the Corporations Law of Queensland;  on 6 September 1999 the Commonwealth Director of Public Prosecutions prosecuted the appellant on those charges at committal proceedings by instructing Mr MacSporran, a barrister in private practice, to conduct the prosecution of those proceedings;  and on 18 October 1999 the Commonwealth Director of Public Prosecutions presented an indictment in the District Court charging the appellant with those offences.  For reasons which it is unnecessary to explore, this indictment was not pursued.

[57]  On 3 November 2000 Mr MacSporran, who was a person appointed by the Governor-in-Council on 16 August 1979 to sign in his own name and present indictments in respect of indictable offences and to prosecute the same for the Queen in right of the State of Queensland, presented an ex officio indictment pursuant to s 561(2) of the Criminal Code charging, amongst other counts, the counts the subject of the appellant's conviction.  Mr MacSporran then conducted the prosecution of that indictment to conviction.  He was instructed in court by officers of the Commonwealth Director of Public Prosecutions and the prosecution was funded by the Commonwealth.

[58]  It is necessary to say a little more about this indictment, the validity of which the appellant now challenges.  The statement of facts does not expressly state but it may be accepted that the indictment was prepared in the office of the Commonwealth Director of Public Prosecutions.  It was then sent to Mr Michael Byrne QC, then Deputy Director of Public Prosecutions for the State of Queensland by Ms Alison Downey, principal legal officer, commercial prosecutions, in the office of the Commonwealth Director of Public Prosecutions under cover of a letter dated 28 September 2000 the substance of which was in the following terms:

"    I now enclose a draft ex officio indictment alleging offences of sections 427 and 408C Queensland Criminal Code which it is intended will replace the indictment alleging offences against section 1000 of the Corporations Law.  If you consent to the presentation of this indictment, it will be presented tomorrow.

     Should you have any queries relating to the above, please do not hesitate to contact me."

[59]  Mr Byrne QC replied by letter dated the same day in the following terms:

"Thank you for your letter of 28 September, 2000.

I consent to the presentation of the indictment attached to your letter."

[60] As I have already indicated, the indictment was presented by Mr MacSporran.  It commences:

"ALAN MACSPORRAN, duly appointed to prosecute in this behalf for Her Majesty the Queen INFORMS THE COURT that:

… "[57]

Then each of the charges are set out and the indictment is then signed by Mr MacSporran.

[61]  It can be seen from the terms of the proposed ground of appeal that it is essential to the appellant's case that this indictment was presented and prosecuted by the Commonwealth Director of Public Prosecutions.[58]  It is that question - whether this indictment was presented and prosecuted by the Commonwealth Director of Public Prosecutions - which is central to this appeal.

[62]  As appears from what I have said so far, the indictment was signed and presented by Mr MacSporran, a person appointed by the Governor-in-Council to sign, present and prosecute indictments charging offences under the Criminal Code.[59]  There is nothing on its face which would lead one to think that it was presented by the Commonwealth Director of Public Prosecutions ("the Commonwealth Director") or by Mr MacSporran as the servant or agent of the Commonwealth Director.

[63]  Moreover the Commonwealth Director plainly had no authority to present indictments charging offences under the Criminal Code other than in his own name.  Section 6(1)(m) of the Director of Public Prosecutions Act 1983 (Cth) ("the Commonwealth Act") at the relevant times provided:

"(1)The functions of the Director are:

…

(m)where the Director, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State - to institute and carry on, in accordance with the terms of the appointment, prosecutions for such offences; …"

The Commonwealth Director was appointed by the Governor-in-Council, by order in Council notified on 10 July 1999 "to sign in your own name and present indictments in respect of indictable offences and to prosecute the same …".[60]  Plainly this appointment authorized him to sign and present indictments in his own name only.[61]

[64]  However, for two reasons, Mr Sofronoff QC, for the appellant, submitted that this was an indictment presented by Mr MacSporran on behalf of the Commonwealth Director.  In the first place he submitted that Mr MacSporran, by virtue only of his appointment, could not present an indictment ex meri motu charging an offence against the laws of Queensland;  he could only do so on the instructions of the Queensland Attorney-General or the Queensland Director of Public Prosecutions ("the Queensland Director").  Consequently, it would seem, the indictment must have been one presented and prosecuted by the Commonwealth Director.

[65]  I do not accept that the right of a person described in s 561(2) to present indictments is so limited.  Whilst it is no doubt the usual practice for barristers in private practice, who hold appointments to sign, present and prosecute indictments in respect of indictable offences against the laws of Queensland, to do so only upon the instructions of the Attorney-General or the Queensland Director or, no doubt more commonly in practice, a person in the office of the Queensland Director, it does not follow that he or she has no right, by virtue only of such appointment, to sign, present and prosecute such an indictment.

[66]  In the first place, any such limitation cannot come from the terms of either s 560(2) or s 561(2).  Section 561 provides:

"(1)A Crown Law Officer[62] may 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)An officer appointed by the Governor-in-Council to present indictments in any court of criminal jurisdiction may 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 persons prior consent has been committed for trial or for sentence for an offence before that court."

Plainly there is no such limitation upon a Crown law officer.  To impose such a limitation upon an officer appointed by the Governor-in-Council to present indictments would require the addition of the words in parenthesis "(but only on the instructions of a Crown Law Officer)".  There is no justification in the Code for any such limitation to be implied either in that provision or in s 560(2).

[67] Secondly, a person holding such an appointment, in signing and presenting an indictment, assumes functions and duties formerly performed by a grand jury.[63]  They were to consider any bill preferred, in private to hear the evidence-in-chief led in support of it and, when 12 of their number were satisfied that at least a prima facie case was made out, to endorse the bill "true bill" and to themselves deliver it into court.[64]  Significantly for present purposes, the source of the information upon which they presented was immaterial;  they could present from their own knowledge though, more usually, did so on the accusations of others.[65]It is plain that, in enacting s 560(2) and s 561(2), the legislature intended to impose similar functions and duties upon the persons described in those sections.[66]

[68] Except to the extent that they have been modified by statute,[67] those functions and duties were and remain independent functions and personal responsibilities.  Their performance is not, or at least not generally, subject to judicial review.[68]

[69]  A person so appointed, other than one otherwise subject to statutory control, is nevertheless bound by any guidelines furnished to him or her in writing by the Queensland Director pursuant to s 11(1)(a) of the Director of Public Prosecutions Act 1984 (Qld) ("the Queensland Act").[69]  Moreover the Queensland Attorney-General or the Queensland Director may discontinue proceedings upon any indictment so presented;[70]  and the Governor-in-Council may, at any time, terminate the appointment of any person appointed by him to present indictments charging offences against the laws of Queensland.  But these safeguards are, in my opinion, the only safeguards to ensure that such a person does not exceed his or her authority, conferred by the Governor-in-Council, in signing, presenting and prosecuting an indictment.

[70]  When asked to point to some authority for the submission that, in the absence of some effective arrangement between Queensland and the Commonwealth, a person appointed to sign, present and prosecute indictments could not do so except upon the instructions of the Queensland Director, Mr Sofronoff QC referred only to s 10(3) of the Queensland Act.  That provides:

"(3)In proceedings with which the director is concerned the director may appear in person or by counsel or solicitor, whether from within the director's own office or in private practice."

[71]  This provision is in the context of a section setting out the functions of the Director.  In subsection (1) it provides that the Director shall prepare, institute and conduct, amongst other things criminal proceedings and confers other functions on her.  In subsection (2) it is provided that in the discharge of her functions the Director shall be responsible to the Minister but that nothing in the section shall derogate or limit the authority of the Director in respect of the preparation, institution and conduct of proceedings.  The provision which I have just set out then follows.  Plainly it enables the Director, in proceedings which she is conducting, to appear herself in such proceedings or by counsel or solicitor.  Other than in the case of Crown prosecutors in the office of the Queensland Director,[71] that provision does not, expressly or by implication, limit the power of a person holding an appointment to do so to sign, present and prosecute indictments.  For the reasons I have given therefore, I would reject the submission that, in the absence of some arrangement between Queensland and the Commonwealth, a person holding an appointment to do so may present and prosecute an indictment only on the instructions of the Queensland Director or the Queensland Attorney-General.

[72]  It is arguable that, in any event, by virtue of the correspondence referred to earlier,[72] the indictment was presented on the instructions of the Queensland Director.  But for the reasons I have given, it is unnecessary to decide that.

[73]  Secondly Mr Sofronoff QC submitted that the facts showed that, in all relevant respects including the presentation and prosecution of the indictment, Mr MacSporran was acting as servant or agent of the Commonwealth Director.  The facts, and the only facts upon which that submission was based were:

1. that the covering sheet of the indictment contained the name and address of the Commonwealth Director of Public Prosecutions, Brisbane Office;[73]

2. that the trial transcript recorded appearance for the Crown as "Mr A MacSporran (instructed by the Commonwealth Director of Public Prosecutions)";[74]  and

3. that the Commonwealth funded the prosecution.[75]

[74]  However it does not follow from those facts that, in signing, presenting and prosecuting the indictment, Mr MacSporran was acting as servant or agent of the Commonwealth Director.  It was not, and could not have been contended that, in performing those functions, he was subject to direction by the Commonwealth Director or the Commonwealth Attorney.[76]  Authority to do what he did derived, and could have derived only from his appointment by the Governor-in-Council.

[75]  Mr Sofronoff's contention was that Mr MacSporran signed, presented and prosecuted the indictment "at the instance of" the Commonwealth Director, by which he must have meant no more than that the Commonwealth Director "instructed" Mr MacSporran in the sense that his staff proofed and arranged for the attendance of prosecution witnesses and that, through the Commonwealth Director, the Commonwealth funded the prosecution including, it may be accepted, Mr MacSporran's fees.  But whether the Commonwealth Director had power to authorize his staff to perform the work which they did or the Commonwealth had power to expend the money which it did are irrelevant to the authority of Mr MacSporran to sign, present and prosecute this indictment.  It may be that, in some other proceedings, a question may have arisen as to whether the expenditure of these funds or the employment of such persons in that work were within the lawful power of the Commonwealth.  But that question does not arise here.[77]

[76]  The sole ground of appeal is based on a false premiss;  that the indictment was presented and prosecuted by the Commonwealth Director of Public Prosecutions.  It was not.  It was presented and prosecuted by Mr MacSporran on behalf of the Queen in right of the State of Queensland.  That is why, for the reasons which I have given, it must fail.

[77]  Having so decided I do not find it necessary to consider the question whether, if this indictment could properly have been viewed as an indictment presented and prosecuted by the Commonwealth Director, it was nevertheless valid.

Orders

1. Application for leave to substitute new ground of appeal granted;

2. Appeal dismissed.

[78]  JERRARD JA:  I have had the advantage of reading the reasons for judgment of the President and of Davies JA and agree with the orders proposed by the President.  Those judgments recite the relevant facts and each holds, with respect to the appellant’s sole ground of appeal-

“That the Commonwealth Director of Public Prosecutions (CDPP)[78] had no lawful authority to indict and prosecute the appellant either in right of the Commonwealth or in right of the State”-

that the CDPP did not indict the appellant on the charges on which he was convicted.  Each judgment holds that since all of those offences were ones against the provisions of the Queensland Criminal Code, they could only be the subject of prosecution by the Crown in right of the State of Queensland.  Each judgment holds that the appellant was properly tried on an indictment signed and presented to the trial court by a person, namely Mr Allan MacSporran, who was appointed “in that behalf” by the Governor-in-Council pursuant to s 560 and s 561 of the Criminal Code.[79]

[79]  McMurdo P holds that the Queensland Director of Public Prosecutions (“QDPP”)[80] consented[81] to Mr MacSporran signing and presenting the indictment actually presented, and that accordingly the proceedings were properly instituted.[82]  Davies JA does not disagree, but holds that whether or not the Queensland Director instructed or consented to the presentation of the indictment signed by Mr MacSporran is irrelevant.

[80]  McMurdo P holds, and Davies JA rejects, the argument that the provisions of the Criminal Code (Qld) and the QDPP Act have the effect in combination that a person holding a commission to sign and present indictments must do so with the authority of either the Attorney General or the QDPP.  In rejecting the argument, Davies JA holds that there is nothing in s 561(2) of the Criminal Code limiting the power given therein, to a person holding a commission as described to present an ex officio indictment, to those occasions when a Crown Law officer has instructed or approved that such an indictment be presented.

[81]  With respect, that is plainly correct.  His Honour’s judgment also makes persuasive reference to the important and independent function and responsibility being exercised by any person who presents an ex officio indictment.  Those functions and responsibilities are described in His Honour’s judgment at paragraphs [67] and [68], in his judgment in the Commonwealth Director of Public Prosecutions v Fukusato [2002] QCA 20 at [96], in the judgment of this Court in R v Foley [2002] QCA 522, (judgment delivered 29 November 2002) in paragraphs 10 to 12 therein, and in Reg v Webb [1960] Qd R 443 at 446-447.  Given that independent function, His Honour holds that an ex officio indictment may be presented otherwise than on the instructions of the Queensland Attorney General or QDPP.   

[82]  The approach taken by Davies JA in this matter reflects his approach in Fukusato (supra), expressed at paragraphs 94-96 of that judgment.  His Honour rejected there the argument that enactment of the QDPP Act meant that in Queensland all prosecutions on indictment were subject to the control of the QDPP, and his judgment in that case referred to the provisions of s 560 of the Code; intended to confer on a person commissioned to present indictments an obligation akin to that of a grand jury, of which obligation the judgment in Foley (supra) recently reminded.  McMurdo P and Thomas JA in Fukusato also held that the QDPP Act did not grant the QDPP a monopoly over the presentation of indictments (at Fukusato paragraphs 16 and 146).

[83]  In Fukusato Davies JA left open the question of whether the QDPP could furnish guidelines published pursuant to s 11(1)(a) to a commissioned person performing that independent function.  In the instant matter His Honour has determined that the QDPP can, and that these are binding.  This view necessarily depends upon all persons holding such commissions not being ipso facto “Crown Prosecutors”, since s 11(1)(a)(i) allows guidelines to be given to “Crown Prosecutors and other persons acting on the Director’s behalf.”  That subsection is drafted on the assumption Crown Prosecutors receiving the guidelines are acting not on their own initiative, but on behalf of the QDPP.  In Fukusato, Thomas JA appears to have used the term “Crown Prosecutor” (not defined in the QDPP Act or any other legislation) in paragraph 144 of that judgment to mean any person holding a commission.  If that view is accurate, the wording of s 10(1)(a)(i) is hard to reconcile with the view that Crown Prosecutors can act independently of the QDPP; unless that subsection is read down to mean Crown Prosecutors employed in the office of the QDPP, or instructed by her.

[84]  The view of Davies JA means that there is a class of persons, namely those holding such commissions, not otherwise subject to any statutory control but bound by any such guidelines, who have the authority to present ex officio indictments against any person without the express or implied authorisation, request, or knowledge of the QDPP or the Attorney General.  Since the wording of any such ex officio indictment, (such as the one at record 1B herein), asserts that the named holder of the commission “duly appointed to prosecute in this behalf for her Majesty the Queen informs the court that…..”, (a statement which would make the term “Crown Prosecutor” appropriate to describe the presenter’s role) this would be a power to cause the expenditure of public effort and money on proceedings which the Attorney General or QDPP might discontinue pursuant to s 563(1) of the Criminal Code, immediately upon learning of them.  It should be appreciated that this is quite different from the conduct of a prosecution on indictment on private information, pursuant to s 686 of the Criminal Code.

[85]  In this State in which there is now a large police service charged with the investigation of criminal matters[83]; a Crime and Misconduct Commission[84] with extensive powers and with the duty to investigate major crime referred to it, and the duty to help prevent major crime and misconduct; a Magistrates Court system throughout the State available and obliged to hear committal hearings,[85] and officers of the Director of Public Prosecutions in a number of regions, together with the capacity to have a private prosecution, it seems incongruous that persons holding commissions who sign and present indictments can act so independently without the vestige of any authority or instructions, when such conduct could affect the public purse.  The executive organs and judicial resources just described make it unlikely that this “grand jury” capacity, unfettered by any instruction or authority from the Director or the Attorney General, is necessary for the prosecution of offenders.

[86]  For those reasons, if the question were free of recent authority, I would prefer the views now expressed by the President, namely that construing the QDPP Act with the Criminal Code means those holding commissions to present indictments pursuant to s 560 and 561 of the Criminal Code, will properly do so only with the express or implied authority of the QDPP or the Queensland Attorney General.  (No examples of indictments being presented without some degree of executive approval or implied authority, since the enactment of the Criminal Code Act 1899, were cited in argument).  However, the question is not free of recent authority.  I consider that the reasons for judgment of Davies JA and Thomas JA in Fukusato,[86] with the description in each of the role of a Commission holder or Crown Prosecutor (if different) in terms of a grand jury function, means that each must be taken to have held that s 10 of the QDPP Act did not alter the law as to the power of Commission holder or Crown Prosecutor established by s 560 and 561 of the Queensland Criminal Code to act independently of executive permission when performing that grand jury role.  That establishes a majority view in that earlier decision important to the reasons for judgment in Fukusato of those judges; and that view of the role of a Crown Prosecutor was repeated by the Court in Foley. 

[87]  In any event, in this case authority was given to Mr MacSporran by the QDPP in his letter of 28 September 2000, and Mr Dexter was prosecuted on an indictment presented (to a court with jurisdiction):

●  In a matter in which the QDPP had authorised Mr MacSporran to sign and present an indictment charging those offences.

●  By a person who held a commission authorising him so to do.

●  On charges alleging only offences against the Queensland Criminal Code.

It follows that on any view all matters that the laws of this State require for the valid presentation of an indictment were satisfied, and I agree with each of McMurdo P and Davies JA that is not to the point that the CDPP paid for the prosecution of Mr Dexter on that indictment, and ensured and arranged for the attendance of the prosecution witnesses and the like.  Mr Dexter was tried on an indictment that was properly presented according to Queensland law.

[88]  The conclusion that the CDPP did not indict the appellant removes the force from the appellant’s sole ground of appeal, namely that the CDPP had no lawful authority “to indict and prosecute” the appellant (in right of the State) for these solely “State” offences.  The CDPP certainly caused the appellant to be prosecuted on the indictment signed and presented by Mr MacSporran, but I consider that that did not constitute the CDPP himself prosecuting the appellant.  This is all that is left of the appellant’s complaint, and I agree with the views expressed by Davies JA that whether the CDPP had power to authorise his staff to perform the work which they did, and whether the Commonwealth had power to expend the money which it did in having the appellant prosecuted, is irrelevant to the authority of Mr MacSporran to sign, present, and conduct as he did the prosecution of the indictment with the assistance and on the instructions of the CDPP.  That assistance, those instructions, and the necessary funding, do not take away from the fact that the indictment was presented and prosecuted, as Davies JA holds, by Mr MacSporran in the exercise of his authority as a holder of a commission on behalf of the Queen in right of the State of Queensland.

[89]  In her learned judgment, the President does consider separately and in detail the merits of the appellant’s complaint that the CDPP had no lawful authority to prosecute him.  The President holds that the CDPP certainly conducted (para 25), or carried on (para 29), the appellant’s prosecution by reason of preparing the case, briefing and instructing Mr MacSporran and the like.  I respectfully disagree with that conclusion, but respectfully agree with the President’s carefully expressed reasons for holding that if the CDPP did conduct or carry on the appellant’s prosecution, he did not do so unlawfully.  There is nothing I can usefully add to the President’s analysis of each of the appellant’s separate arguments on that matter.