R v Cockrell[2015] QCA 73

SUPREME COURT OF QUEENSLAND

[1] GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.

[2] MORRISON JA:  On 13 November 2003 Mr Cockrell entered a plea of guilty to an ex‑officio indictment containing 19 offences.  Fifteen of those offences were under the Criminal Code 1995 (Cth).  The other four were under the Criminal Code (Qld).  The Commonwealth offences were for obtaining a financial advantage by deception, or attempting to do so, and related offences.  The Queensland counts (12, 14, 16 and 18 on the indictment) were for fraud under s 408C of the Criminal Code (Qld).

[3] Within the requisite period he applied for leave to appeal against the sentences imposed.  That application was abandoned after receiving legal advice.[1]

[4] In 2004 it became apparent that the indictment had been signed by a person who was authorised to do so in respect of both Commonwealth and Queensland counts, but had been presented by a person who was not authorized to present indictments in respect of Queensland counts.[2]

[5] As a result this Court granted Mr Cockrell an extension of time to appeal against his conviction on the Queensland counts.[3]  The Court set aside the pleas of guilty and the convictions in respect of those counts.

[6] On 17 March 2005 Mr Cockrell filed his second application for an extension of time to appeal the sentence imposed.  The application was based on asserted errors in the orders for parole.  It was refused.[4]

[7] On 15 July 2009 a third application for extension of time to appeal the sentence was filed.  One of the grounds was that there was a miscarriage of justice when Mr Cockrell was arrested in 2005, following completion of his parole.  That application was refused.[5]

[8] Now, more than nine years after the 2005 appeal, and nearly eleven years after he was convicted, Mr Cockrell seeks leave to appeal against his conviction on the Commonwealth counts.  The issues raised by his application are:

(1) is there an adequate explanation for the delay;[6]

(2) what are the merits of the proposed appeal;[7] and

(3) is there good reason to relieve Mr Cockrell of the consequences of not filing in time?[8]

Explanation for the delay

[9] Mr Cockrell says that the delay is explained by a number of factors:

(a) his lack of legal representation in the 2005 appeal;

(b) he did not become aware until recently that his arraignment in 2003 violated s 597C of the Criminal Code (Qld) (Code);

(c) he had attempted to resolve the issues without troubling the court; and

(d) he resides in the USA, and has no funds to retain a lawyer who might have discovered the error.

[10] Whilst he represented himself in the 2005 appeal, the grounds in that appeal included:

• the prosecution presented an invalid indictment;
• the prosecution presented an invalid indictment in regard to the Queensland charges;
• the indictment was not validly presented in accordance with s 560 and s 561 of the Code.[9]

[11] Mr Cockrell’s outline on that occasion recited s 560 and s 561, and stated that the indictment “was invalid” because it was “not validly presented in accordance with s 560 and s 561 of the Criminal Code (QLD)”.[10]  The outline on behalf of the Commonwealth DPP expressly dealt with the issue of the validity of the convictions on the Commonwealth counts.[11]  However, even though Mr Cockrell chose not to argue that the indictment, insofar as it related to Commonwealth offences, “was anything other than properly presented and valid”,[12] or that “the convictions upon [Mr Cockrell’s] plea of guilty to the Commonwealth offences are in any way affected”,[13] he did not abandon the point.

[12] The Court held that even though the convictions on the Queensland counts had to be set aside:

“There is nothing to suggest that the indictment insofar as it relates to the Commonwealth offences is in any way flawed.”[14]

and

“…the presentment of the indictment insofar as it charged the Queensland offences in counts 12, 14, 16 and 18 was not lawful”.[15]

[13] In my view the proffered explanation, that Mr Cockrell did not become aware, until recently, of the ground he wishes to press on this application, should be rejected.  Cockrell No 1 reveals that the point was raised, even if it was not pressed strongly by Mr Cockrell at the hearing.  Mr Cockrell’s affidavit[16] states that in the 2005 appeal:

• the convictions on the Commonwealth offences “were not formally challenged”;[17]
• that “the effect a violation of s. 561 has on the lawfulness of a trial” was “not raised, to any great extent”;[18] and he
• “did not specifically raise the violation under s. 597C”.[19]

[14] Whilst those statements do not reveal the true position, they do accept that the point was raised.  Further, the point was raised with sufficient clarity that the Court was able to make the findings referred to in paragraph [12] above.  Mr Cockrell’s outlines also accept that the point was raised.  In his primary outline he accepts the point was raised but “never fully pressed”.[20]  In his outline in reply he says that had he had legal representation in the 2005 appeal, then “a more significant submission could have been made”.[21]

[15] In any event, Mr Cockrell’s affidavit reveals that he was aware from 2009 that “the entirety of his trial was a nullity”, and raised this point with various bodies in that and “ensuing years”.[22]  Mr Cockrell says he “made every attempt to have the matter resolved without troubling this court”,[23] and instances submissions in 2009 to the UN Human Rights Committee and the Human Rights and Equal Opportunity Commission, and further submissions in the “ensuing years” to those bodies as well as the Commonwealth Attorney-General, Department of Immigration and Border Protection, and the Commonwealth Ombudsman.[24]  It seems he waited until those avenues were exhausted before applying to the court.[25]

[16] That Mr Cockrell was aware of this point but waited many years before raising it, appears also from his outline.  In it he relies on R v LT,[26] a case which he says exemplifies the point, and submits that he “did not become aware of the significance of this finding until some years later”, i.e. some years after 12 December 2006 when R v LT was handed down.[27]

[17] Thus Mr Cockrell opted, over some years, to try different avenues to achieve his desired outcome before applying to this court.  In the circumstances there has been a deliberate choice on Mr Cockrell’s part to delay bringing this application.  Deliberate delay tells against the exercise of the discretion in Mr Cockrell’s favour.[28]

[18] The fact that Mr Cockrell resides in the USA, and has no funds to retain a lawyer, are of little moment.  In his second affidavit Mr Cockrell says that he “offers no excuse for his delay aside from his own ignorance of the effect the error had on his trial”.[29]  For the reasons above that explanation cannot be accepted.

[19] In my view there is not a sufficient explanation for the delay.

Merits of the proposed appeal

[20] Mr Cockrell advances two grounds of the proposed appeal:

(i) it was an error to record any convictions as the District Court lacked jurisdiction because no valid indictment was presented and no arraignment took place; and

(ii) there has been a miscarriage of justice because the District Court considered four invalid Queensland counts at the same time as it considered the remaining Commonwealth counts.

Availability of a second appeal

[21] For the reasons given above these grounds were encompassed in the points raised and decided in Cockrell No 1.  Mr Cockrell’s application seeks a second appeal on the same point, but that avenue is not open as his rights of appeal under s 668D of the Code have been exhausted,[30] a fact pointed out by this Court as long ago as 2005, in Cockrell No 2.

[22] Mr Cockrell accepts that his application is caught by the principle in Grierson,[31] but contends that it comes within one of the exceptions to that principle.  The exceptions to Grierson are few.  One is where there has been a denial of procedural fairness, for example by failing to deal with an argument raised on appeal.[32]  A second is where there is power of an intermediate court of appeal to use the slip rule to correct an order which, through error or mistake, incorrectly records the order the court made.[33]  A third is where there is a discretion to allow a fresh appeal after abandonment of an earlier appeal, on the ground that the earlier appeal had not been the subject of any final determination.[34]

[23] Mr Cockrell submits that the procedural fairness exception is large enough to encompass a miscarriage of justice, which he contends occurred here.  For the reasons given above, that submission cannot be accepted.  There was no denial of procedural fairness in Cockrell No 1.  The point that Mr Cockrell now wishes to agitate was raised in his notice of appeal, and, whilst ultimately not pressed by him, was the subject of findings by the court.

[24] None of the other possible exceptions apply to Mr Cockrell’s case.  There is no general jurisdiction, whether inherent or otherwise, which would permit this Court to intervene on the grounds of the interest of justice.[35]

Valid presentation of the ex-officio indictment

[25] At the heart of Mr Cockrell’s contentions is the same point as was raised in Cockrell No 1, namely that the defect in the presentation of the indictment meant that the proceedings are a nullity.  The only difference is that Mr Cockrell now wishes to seek orders that the convictions on the Commonwealth counts be set aside.

[26] It is well established that Commonwealth counts can be joined with Queensland counts on the one indictment.[36]  Here the indictment was lawfully signed, even though the State counts were joined, because the indictment was signed by a person authorised to sign indictments for Commonwealth and Queensland counts.[37]  In this respect the present case differs from R v LT, where the relevant count had not been signed by an authorised person, and was therefore never “set forth in the indictment”.[38]

Operation of s 561 and s 597C.

[27] The two relevant provisions are s 561 and s 597C of the Code.  They appear in Part 8 - Procedure, Chapter 60 - Indictments.  The chapter has these relevant features:

• s 560 requires that a charge for an indictable offence be brought under a written indictment, and that an authorised person sign and present it to the court; it does not have to be the same authorised person, as long as an authorised person signs it, and an authorised person presents it;
• s 561 permits that procedure to be used for ex officio indictments;
• s 564 provides for the form of the indictment; it must set forth the offence in such manner and with such particulars as may be necessary to inform the accused of the nature of the charge, include any alleged circumstance of aggravation, and name the place of trial;
• s 565 has general rules for the way in which the charge is to be set forth;
• s 567(2) provides for the limited circumstances for joinder of charges, that is, where they are founded on the same facts, or are (or form part of) a series of offences of the same or similar character, or are a series of offences committed in the prosecution of a single purpose.

[28] Chapter 62 includes s 597C which provides for the arraignment of the accused, who must be informed in open court of the offences charged in the indictment, and called on to plead to them; the trial is deemed to start, and the accused is deemed to be brought to trial, when the accused is called upon.

[29] To that one must add s 604(1), which provides that if an accused pleads any plea other than guilty,[39] that person is, by that plea, deemed to have demanded that the issues raised be tried by a jury, and is entitled to have them tried accordingly.

[30] As can be seen the evident purpose of the provisions is to ensure that when the accused is to be brought to trial, it is on a properly signed and presented indictment that makes the charges clear, so that the accused can plead to them, and have those charges tried after arraignment.  As was  said in R v LT:[40]

“One may briefly summarise the effect of these provisions. An accused may be tried only for offences charged in an indictment, being a document signed by the Crown Prosecutor. Section 567 makes express provision for the limited circumstances in which charges for more than one offence may be joined on one indictment. An accused is entitled to have the offences so charged tried by jury upon his plea of not guilty after arraignment by reference to the charges in that document. The trial of those offences commences upon the response of the accused to the arraignment. These provisions simply do not contemplate the possibility of a trial of an accused for an offence which is not contained in an indictment, or for some offences which are contained in an indictment and some which are not.”

[31] Section 561 of the Code relevantly provides:

“(1)A Crown Law Officer may sign and present an indictment in any court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not.

(2)A Crown prosecutor or a person appointed by the Governor in Council to sign and present indictments in any court of criminal jurisdiction may sign and present an indictment in that court against any person for any indictable offence ... whether the accused person has been committed for trial or not and against any person for an indictable offence who with the person’s prior consent has been committed for trial ….”

[32] The indictment referred to in s 561 is one which may contain joined charges under s 567, and joined Commonwealth and Queensland charges.  The indictment has to comply with s 564, which requires that it “set forth the offence with which the accused person is charged in such manner, and with such particulars … as may be necessary to inform the accused person of the nature of the charge”.  There is no suggestion that this indictment did not comply with those provisions.[41]

[33] There is nothing in the text, or the context,[42] of s 561 which would compel the conclusion that a lawfully signed indictment for joined charges must utterly fail if the indictment is presented by a person who is authorised to present some of the charges, but not others.  The presentation of a lawfully signed indictment is the start of the arraignment procedure, as part of which the accused is called upon to plead to the charges presented.  If some are not presented, albeit they have been included in a lawfully signed indictment, those particular charges have not been presented, and the accused will not be called upon to answer them.

[34] Section 597C relevantly provides:

“(1)On the presentation of the indictment … the accused person is to be informed in open court of the offence with which he or she is charged, as set forth in the indictment, and is to be called upon to plead to the indictment, and to say whether he or she is guilty or not guilty of the charge.

…

(3)The trial is deemed to begin and the accused is deemed to be brought to trial when the person is so called upon.”

[35] In my view neither the text nor its context compels the conclusion for which Mr Cockrell contends.  The focus of s 597C is not on the content of an indictment, nor on how or by whom it is to be presented.  It is directed at the arraignment, and simply requires that the accused is to be told the charges and called upon to respond to them.  The response is to each charge, even if done in bulk under s 597C(2).  Nothing in s 597C renders unlawful an indictment such as the one here, which contains charges validly set forth in the indictment but presented by an unauthorised person, and also charges validly set forth and presented by an authorised person.

[36] In reaching my conclusion as to the operation of s 561 and s 597C I have not ignored the importance of ss 560, 561 and 597C to the administration of criminal justice,[43] the rule of one presentment and one jury,[44] and that it is no light thing to arraign an accused.[45]  It simply follows from the plain wording of the text in each case, in context.

The orders in Cockrell No 1.

[37] In my view the orders made, and the basis for the decision, in Cockrell No 1 must be considered.  All members of the Court held that the presentation of the indictment was unlawful and of no effect, but only so far as it related to the Queensland offences.[46]  Therefore the finding was that, in respect of the Queensland offences, the judicial process of the trial had, not been duly engaged, and Mr Cockrell was never called upon to plead “on the presentation of the indictment”, as required by s 597C.[47]

[38] The orders made to reflect that finding were to “set aside the pleas of guilty and the convictions in respect of the Queensland offences contained in the ex officio indictment 2756/03 (counts 12, 14, 16 and 18)”.[48]

[39] Effect must be given to those orders, being regularly entered and not the subject of appeal.  Their effect is this:

• Mr Cockrell must be taken to have never been called on to plead to the Queensland offences;
• Mr Cockrell must be taken to have only ever been called on to plead to the Commonwealth offences;
• because he was never called on to plead to the Queensland offences, no trial in respect of them commenced: s 597C(3).

[40] In my view it follows from the fact that Mr Cockrell was only ever called upon to plead to the Commonwealth offences, and that the person presenting the indictment was authorised to present one for Commonwealth offences, that Mr Cockrell was called on to plead to charges in an indictment that was properly signed and presented.

Reliance on R v LT.

[41] Mr Cockrell relies on the decision of this Court in R v LT.  That case involved an indictment containing eight counts, seven of indecent dealing and one of rape.  The prosecutor added a new charge of rape as count 9.  The accused was arraigned on count 9, but count 9 had not been signed by the prosecutor.

[42] The court held that count 9 was not signed by a person authorised to prosecute that charge, and therefore the accused was not arraigned in accordance with s 597C, because count 9 was not “set forth in the indictment”.[49]  The respondent accepted that the conviction on count 9 could only be sustained if the Court were to grant leave to add count 9, which the Court was not prepared to do.[50]  The Court held that, the charge having not been set forth in the indictment, the processes of trial were not lawfully engaged in relation to count 9.

[43] The Court did not hold that the procedural error in relation to count 9 had the effect that the accused was never arraigned on all the other charges.  The impact of count 9 could not be quarantined because of the possibility that the accused’s chances of acquittal on the other charges were prejudiced by the irregular presence of the charge in count 9.[51]

[44] In my view Mr Cockrell’s proposed appeal has no prospect of success, for the reasons given above.

Good reason to relieve Mr Cockrell of the consequences of not filing in time?

[45] I can see no good reason to relieve Mr Cockrell of the consequences of his not filing in time.  The delay is very serious, amounting to nearly eleven years from conviction, and more than nine years after his first appeal, and there is no satisfactory explanation for it.  A substantial part of the delay has been deliberate, while Mr Cockrell explored other avenues to achieve his aim.  The point he wishes to raise has been raised before, in Cockrell No 1, and his appeal rights have been exhausted.  In any event the point is one that has been known to Mr Cockrell for at least six years.  Furthermore, under a plea agreement with the Commonwealth[52] he entered a plea of guilty to all nineteen counts on the original indictment with open eyes and the benefit of legal advice.

Conclusion

[46] For the reasons expressed above I would refuse the application.

[47] JACKSON J:  I agree with Morrison JA.