The Queen v Cook[2007] QDC 180

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 2nd February 2007 the Office of the Director of Public Prosecutions ("ODPP") applied for leave pursuant to s.590 of the Criminal Code to extend the time for the presentation of an indictment beyond the six month statutory period following committal for trial. The application was opposed.

2. [2]
   The application was made orally pursuant to rule 1(1) of the Criminal Practice Rules.

3. [3]
   The relevant history of the proceeding is as follows:

1. (a)
   Committal hearing - 19th February 2006

2. (b)
   Transcripts received at ODPP - 3rd Dec 2006

2. (c)
   Committal documents received at ODPP - second week of January 2007.

4. [4]
   The indictment should have been presented on or before 19th October 2006, some 15 weeks prior to this application being made.

5. [5]
   It is not disputed that the ODPP was unaware of the proceeding at any material time prior to 3rd December 2006, after the six month period had already expired.

6. [6]
   It is also not disputed that the committal documentation was not received by the ODPP through no administrative oversight, failure or omission by that Office. The administrative oversight, if that's what it was, was that of the Magistrates Court registry, although the detail is not explained.

7. [7]
   The receipt of the committal transcript did not alert the ODPP to the oversight and there is probably no reason to think that it should have. However, the receipt of the committal documents did alert the ODPP to the fact of a committal for trial having been made and the application has been brought with expedition.

8. [8]
   Mr Lynam for the respondent did not assert any particular prejudice arising from the circumstances that would affect Mr Cook. There were no submissions made on the hearing as to whether any miscarriage of justice would be likely to result should the extension of the time be granted.

9. [9]
   Section 590(1) of the Criminal Code provides that the ODPP must present an indictment to the court, if it is intended to put a person committed for trial upon his or her trial, no later than six months after the committal date.

10. [10]
    Section 590(2) provides that if an indictment is not presented within that statutory period, the ODPP “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.”

11. [11]
    The consequence of an indictment not being presented and no extension being granted is that the person charged with the indictable offence is entitled to be discharged from the consequence of his or her committal.

12. [12]
    However, s.590(3) provides for the exercise of a discretion to grant an extension:

1. “(3)
   The Court hearing the application may, if satisfied that good cause is shown any no miscarriage of justice is likely to result, grant the extension of time the Court considers just.” (my underlining).

13. [13]
    I was referred to a number of decisions (and other decisions referred to in those), namely: R v Foley (2002) QCA 522; R v Palmer (2005) QDC 060; and DPP v Crawford & Wortley (2005) QDC 105.

14. [14]
    In Foley the QCA considered the issue of whether an ex officio indictment could be presented after an application to extend the time within which to present an indictment was refused at first instance.

15. [15]
    The reason for the failure to present the indictment within the statutory period was cited as "inefficiency" in the management of the ODPP.

16. [16]
    The court considered that s.590 was directed to ensuring that, where a person has been committed for trial, he is indicted within a reasonable time thereafter.

17. [17]
    While the decision on appeal dealt with the relationship between s.590 and s.591, in the context of the presentation of an ex officio indictment, the Chief Judge at first instance had refused to extend the time.

18. [18]
    In Crawford & Wortley the failure to present an indictment was "administrative oversight" by the ODPP.  Wilson SC, DCJ determined that "mere administrative oversight" such as in that case did not constitute good cause and refused the application. 

19. [19]
    Similarly, in R v Enosa & Waigana (unreported, 06.03.02) Shanahan DCJ also determined that administrative oversight (lack of funding or overwork) on the part of the ODPP did not amount to good cause.

20. [20]
    In Palmer, Wall QC, DCJ also determined that administrative inefficiency in the ODPP - even where the application was made a mere four days after the expiration - did not justify an exercise of the discretion on the basis of "good cause.”  The relevant committal documents were received by the ODPP but the various staff "did nothing and nothing was done.”

21. [21]
    On the other hand, Skoein SDCJ in R v Brunton (unreported, 21.11.03) found that good cause had been shown.  The time had expired by about 14 days.  It was the result of “an unfortunate in the system in the prosecutor's office.”  He stated that there was no "wilful dereliction of duty or any other form of conduct of a reprehensible type (by officers of the ODPP).”

22. [22]
    That decision, at the very least, makes it clear that each case must be considered on its own facts. Even where there has been an "administrative oversight" by the ODPP, the discretion may, of course, be enlivened to grant an extension of time.

23. [23]
    However, this case is quite different from the decisions referred to above: in those decisions the oversight or failure was clearly that of the ODPP. In this case the ODPP is not implicated in the failure to present the indictment within the statutory period at all. It knew nothing about the committal until after the six month period had expired. The oversight, omission or failure was that of the Magistrates Court registry.

24. [24]
    Hence, the critical question in this case is this: does a failure by the Magistrates Court registry to transmit the committal documents to the ODPP within time constitute "good cause" for the purposes of s.590(3)?

25. [25]
    Section 590(1) by its language imposes an obligation upon the ODPP. The obligation is not imposed on the Magistrates Court registry that has the function of transmitting the committal documents of a person charged with an indictable offence and committed for trial to the ODPP. It follows that where the ODPP has no knowledge of a committal having been made it has no obligation to discharge. It cannot present an indictment when it does not know that there has been a committal upon which an indictment must be presented.

26. [26]
    In my view, where the oversight, omission or failure is that of another agency or department and the ODPP has, without having acted unreasonable or having wilfully not made appropriate enquiry or otherwise heeding available means of knowledge within its office, had no knowledge of the relevant committal, then it cannot reasonably be said to have failed to discharge its statutory obligation. I would think that in such cases, subject to the caveat that the discretion is to be exercised according to the merits of a particular case and ought not to be fettered, "good cause" will have been shown.

27. [27]
    In Palmer, Wall QC, DCJ implied that this may be so when he observed that "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.”

28. [28]
    It follows that in my view the circumstances are such that in this case, good cause has been shown. Accordingly the application is granted.

29. [29]
    Orders:

1. The Application is granted;

2. The time within which to present the indictment is extended to and including 09 February 2007.