DPP v Crawford & Wortley[2005] QDC 105

DISTRICT COURT OF QUEENSLAND

1. [1]
   The Office of the Director of Public Prosecutions (ODPP) applies under s 590(2) of the Criminal Code for an extension of time in which to present an indictment against James Anthony Crawford and Leanne Shirley Wortley. The indictment, as originally drawn, charges each with two counts of assault occasioning bodily harm, with circumstances of aggravation. Both offences are said to have occurred on 15 February 2004. The committal hearing took place on 24 August 2004, with the respondents being committed for trial and entering no pleas. ODPP received the file on 3 September 2004.

2. [2]
   A legal officer employed by ODPP, Ms Theresa Roberts, commenced preparation of a summary of the matter, intended to lead to the preparation and presentation of the indictment, on 7 December 2004. At the same time she contacted the defendants’ representatives who, later that day, advised her the matter was still to proceed to trial. On the 23 December 2004 the indictment was prepared. On 24 December it was signed by a Legal Practice Manager and handed to another officer to arrange for its presentation on 3 February 2005.

3. [3]
   Documents exhibited by Ms Roberts show the customary notices were sent to the defence representatives on 7 January 2005. The employee who had carriage of the indictment up to that time left the employ of the ODPP that day. Another officer was subsequently given carriage of the matter. The documents indicate that further discussions occurred between the ODPP and defence representatives on 10 January 2005 but, otherwise, normal preparations were continuing towards presentation of the indictment. On 8 March, Ms Roberts became aware the indictment had not been presented at a Callover on 3 February. The explanation advanced was ‘administrative oversight’.

4. [4]
   Section 590(1) gives the ODPP six months in which to prepare and present an indictment to the Court. Section 590(2), upon which this application is founded, states:

(2)  If—

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

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

5. [5]
   Here, the application for extension has been brought after the expiry date, 24 February 2005.

6. [6]
   Section 590(3) contains the discretion to be exercised in deciding whether to  grant an extension:

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

7. [7]
   The question whether administrative errors within the ODPP may enliven the discretion has been considered previously. In R v Foley (2003) 2 Qd R 88 the reason for non-compliance was inefficiency in the management of the ODPP. The Chief Judge was not persuaded that administrative oversight or error constituted good cause, and refused to extend the time within which to present the indictment. The decision was upheld on appeal, without further comment on the question whether mistakes in administration within the ODPP could ever constitute good cause.

8. [8]
   In R v Enosa & Waigana (unreported, 6 March 2002) Shanahan DCJ suggested that the ODPP could apply for an extension before the six months ends, in a number of circumstances, one of which is that evidence necessary to establish the charge will not be available within the time. However, in deciding an application made after the end of the period he determined that administrative oversight did not amount to good cause, remarking:

…the pressures on the ODPP... through lack of funding and over work do not allow me to consider that good cause has been shown why an indictment was not presented... within the time frame allowed by the law.

9. [9]
   In R v Brunton (unreported, 21 November 2003) Skoien SJDC was, however, prepared to find good cause where the administrative mistake was the product of unforeseen events. He described the lapse which lead to the expiry of the period without presentation of the indictment as an 'unfortunate breakdown' in the ODPP:

It was simply a succession of events which took the responsible Prosecutor away from his desk, an illness suffered by the Prosecutor who was left to look after the matter, the leave taken by the original Prosecutor on his return and the consequent failure by him or anyone else to check that the indictment had been presented.

10. [10]
    Recently, in R v Palmer (2005) QDC 060, the oversight was, again, the product of administrative oversight within the ODPP. Wall QC, DCJ refused leave, remarking:

…were I to accede to the application some encouragement maybe given to the ODPP to not be concerned with proper systems and with time limits applicable to the presentation of indictments.

11. [11]
    In his oral submissions Mr Vasta expanded on the administrative oversight which is at the core of his application. The ODPP has, he said, a system in place to prevent indictment presentation dates expiring. On 1 February 2005, a regular email was sent out containing particulars of indictments approaching expiry date, this particular indictment being on that list. In Mr Vasta's words, the warning was not heeded "because the indictment was signed and a callover package done, it was presumed that it had been done."  This was the first oversight.

12. [12]
    The callover took place on the 3 February and a check of its consequences for the matters on it would have shown whether this indictment was presented. The failure to conduct that check is the second oversight, of which Mr Vasta said: "The administrative oversight was that the legal officer responsible did not then check the callover results, to ensure that there had been some instruction."

13. [13]
    Mr Vasta’s primary contention is that the phrase used in the subsection, ‘good cause is shown and no miscarriage of justice is likely to result' should be read as a whole, rather than by concentrating on the words 'good cause' in isolation. In his submission, important issues such as the wider community interest fall to be considered under section 590 (3) and the more serious or violent the offence, the less onerous the test should be.

14. [14]
    Unsurprisingly, it is contended for the respondents that the authorities are uniformly against the proposition that administrative oversight, by itself, can amount to good cause. Mr Kent distinguishes R v Brunton as an unusual case where 'external obstacles' hindered ODPP operations in an unpredictable way, causing oversights to occur without fault on the part of any person, or failing of the system - in that case, illness.

15. [15]
    The contention that community interest may be an element in the matters to be considered in determining whether good cause has been shown is novel, and no authority was advanced to support it. On its face, the legislation clearly reflects an attempt to balance the rights of an accused person, and the need to protect the interests of the community.

16. [16]
    That balance, the legislature is taken to have intended, is properly reflected in a limitation period of six months. Ordinarily this is sufficient to allow the Crown time to prepare and present its case, and ensure that both individual and community interests are safeguarded. As the legislation allows applications either before or after the expiry date, it also reflects an appreciation that, from time to time, the Crown may require an additional period to prepare the matter.

17. [17]
    At the same time the limitation is intended to safeguard the interests of an accused person. Those who have been committed for trial cannot have charges clouding their lives indefinitely. Mistakes and errors of management will always occur, in any system; as Skoien SJDC remarked, ‘there is scarcely an office or organisation anywhere in which at some time a similar slip up has not occurred’ – but that is not the risk, or the problem, to which the statute is directed.

18. [18]
    In my judgment, fortified by the authorities canvassed earlier, mere administrative oversight of the kind which happened here does not constitute good cause. The application is refused.