R v Palmer[2005] QDC 60

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an oral application by the Crown pursuant to rule 16(1) of the Criminal Practice Rules for an extension of time within which to present an indictment. The application is made under section 590(2) of the Criminal Code.

The chronology is as follows:

21 September 2004: Palmer committed to the District Court at Townsville for trial on 3 counts of indecent treatment of a child under 16 years and one count of rape.

25 February 2005: Indictment drafted and placed in 'in tray' in senior clerk's office in accordance with office practice.

21 March 2005: Last day on which indictment could be presented.

22 March 2005: Senior clerk reviews indictments in 'in tray' and realises the indictment is out of time. Defence counsel alerted to Crown intention to apply for extension of time.

24 March 2005: Application for extension of time heard in the District Court.

The time has expired by some four days. Mr Collins for the defence did not object to Mr Greggery for the Crown stating from the Bar table the reasons why an indictment had not been presented within the six months period.

They are these:

The senior clerk did nothing in relation to any of the documents in her in tray between Friday the 25th of February 2005 and the 22nd of March 2005.

She ignored those documents and did not direct her attention in any way or form to them.

The system was clearly deficient. Mr Greggery says it has since changed so that there is now a weekly review of such matters, whereas previously the review was conducted each two months.

Were I to accede to the application some encouragement may be given to the Office of the Director of Public Prosecutions to not be concerned with proper systems and with time limits applicable to the presentation of indictments.

Mr Collins can point to no prejudice which is likely to accrue to Mr Palmer should the application be granted.

Section 590(3) is in the following terms:

"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."

As I said, an extension of four days until today is required.

Submissions were directed to whether good cause has been shown; no submissions were directed to whether any miscarriage of justice would be likely to result should the extension be granted.

Three decisions were referred to. They are these: 

1. The decision of the Chief Judge in R. v. Foley referred to in the decision of the Court of Appeal in R. v. Foley (2003), 2 Qd.R. 88 at 90, paragraph [4]. The reason for the delay in presenting the indictment in that case was said to be inefficiency in the management of the Director's office. The delay was about three weeks. The Chief Judge found that good cause had not been shown.

2. R. v. Kelly, an unreported decision of Judge Pack on the 11th of October 2001. An extension of some three weeks was sought in that case. His Honour said:

"There is no evidence that any system was in place within the office of the Director of Public Prosecutions to identify matters by reference to the committal date.

In the absence of explanation, it seems an inference that a lack of a system or inadvertence may each also have played a significant part.

I am not satisfied good cause has been demonstrated to grant the application. It has not been shown that there was a reason which made the presentation of the indictment impracticable within the six month period. I dismiss the application."

3. R. v. Brunton, an unreported decision of Senior Judge Skoien on the 21st of November 2003. In that decision his Honour found that good cause had been shown. The time had expired by some 14 days. His Honour referred to the reasons why time had lapsed in the following terms:

"The main reason for the passage of time up to the end of the six month period was, as the facts before me suggest, the complexity of the case, including consideration of the evidence against possible co-accused. The lapse which caused the cut off date to be passed was an unfortunate breakdown in the system in the Prosecutor's office. I am unable to see that there was any wilful dereliction of duty or any other form of conduct of a reprehensible type. 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. It was a regrettable lapse, but I think it would be fair to say that I suspect there is scarcely an office or organisation anywhere in which at some time a similar slip up has not occurred."

Mr Greggery in the present case concedes that Brunton is distinguishable on its facts and that there was more merit in the application in Brunton than there is in the present case. I agree that that is so.

In the present case, in real terms, no explanation is advanced other than that nothing happened and that nothing was done, and that documents were ignored; and that, in simple terms, work which should have been done was not done and was not attended to.

The present case is not a case where the depositions were lost or there was a delay in transmitting them from the Magistrates Court to the Office of the Director of Public Prosecutions, rather it is a case of the failure of an employee to attend to her duties properly.

In all of the circumstances I am not satisfied that good cause has been shown; the preponderance of the authorities referred to compel me to that conclusion.

In the circumstances I order that Edward Ernest Palmer be discharged from the consequences of his committal for trial in the District Court at Townsville on the 21st of September 2004.