R v Ellis[2010] QDC 533

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application on behalf of the defendant under s 590AA of the Criminal Code (the Code) to stay and/or to quash count 1 of a two count indictment presented on 7 October 2008.

2. [2]
   The indictment is as follows:

3. [3]
   The applicant is liable to a maximum penalty of 10 years imprisonment for Count 1^[1] and to a maximum penalty of 5000 penalty units or 2 years imprisonment for Count 2.^[2] 

Procedural history

4. [4]
   The applicant was charged in the Magistrates Court with two counts contrary to s 43(1) of the Transport Operations (Marine Safety) Act 1994 (the TOMSA) and one count of being unlicensed contrary to s 61(1) of the TOMSA.

5. [5]
   The charges against the applicant under s 43(1) of the TOMSA were:^[3]

1. That on the 16^th of September 2007 at Pumicestone Passage in the State of Queensland, you being a person involved in the operation of a ship, namely a personal watercraft, caused that ship to be operated unsafely and the unsafe operation of the ship caused the death of a person namely JAMIE ANNE FAIREY.

2. That on the 16^th of September 2007 at Pumicestone Passsage in the State of Queensland, you being a person involved in the operation of a ship, namely a personal watercraft, caused that ship to be operated unsafely and the unsafe operation of the ship caused grievous bodily harm to a person namely SETH COLSON.

6. [6]
   The facts are that at about 3.30pm on Sunday 16 September 2007, the applicant was operating a Polaris Jet Ski. The male (Seth) and the female child (Jamie) were on the jet ski with him. He was operating the jet ski in the waters of Pumicestone Passage near Sylvan Beach.  It is alleged he collided into a metal post of a navigation beacon.  This caused the death of Jamie Fairey and the grievous bodily harm to Seth Colson.^[4]

7. [7]
   According to Mr Braithwaite, the solicitor who has had carriage of this matter throughout, the applicant was charged with these offences by the Sunshine Coast Water Police on 31 October 2007.^[5]

8. [8]
   The “Police Reference” on the Bench Charge Sheet for each offence is, “Senior Constable M. Vickers, 4008874, Sunshine Coast Water Police”. Each Bench Charge Sheet has a date of “11/12/2007” under the “Bail status” heading.^[6]

9. [9]
   A statement from Senior Constable Vickers in the depositions provided to me for the purposes of this application makes reference to his issuing the applicant with notices to appear concerning this matter on 31 October 2007 and 11 December 2007.^[7]

10. [10]
    On 8 July 2008 discussions were held on behalf of the applicant with Redcliffe Police Prosecutions seeking their view about whether they would consent to the charges being dealt with summarily. Mr Braithwaite was subsequently advised this consent would not be given.^[8]

11. [11]
    On 29 July 2008 the applicant pleaded guilty to the two charges under the TOMSA in the Caboolture Magistrates Court and was committed for sentence to the District Court.

12. [12]
    The committal proceedings were conducted under s 110A of the Justices Act 1886 (the JA), with no witnesses required for cross-examination, by consent.  The witness statements were tendered and admitted as exhibit 1.  The exhibits were tendered and admitted as exhibit 2.  The police prosecutor advised the magistrate that this was the prosecution evidence.  The applicant’s legal representative then said:^[9]

“… My instructions are to commit my client to the District Court, your Honour, without you considering the contents of the statements and exhibits before you.  I further place on record, and no doubt he will address you in a minute, that he wishes to enter a plea of guilty to those two charges.”  (My emphasis)

13. [13]
    The magistrate then formally read the charges to the applicant and addressed him under s 104(2) of the JA. When he had done so, he said, “[Your legal representative] has indicated that you wanted to plead guilty, is that the case,” to which the applicant replied, “Yes, it is”.^[10]

14. [14]
    The applicant was then formally committed for sentence to the criminal sittings of the District Court to be held at Brisbane on a date to be notified by the Director of Public Prosecutions.^[11]

15. [15]
    After formally advising the applicant of the availability of legal assistance, the magistrate said:^[12]

“There is a statement of defendant form for you to sign as well.  That’s a document which acknowledges that you have pleaded guilty in the Magistrates Court that effectively stops you from changing your plea in the higher court.

So once you’ve signed the documentation in respect of that you’ll be free to go.

…

Once you’ve signed those documents, you’re free to leave.”

16. [16]
    This form was not placed in evidence for the application.^[13]  It does not form part of the court file.

17. [17]
    The committal order was noted on the transmission sheet.^[14]  This document is directed to the “Office of the Director of Public Prosecutions” at a Brisbane GPO Box.  Two lines are struck through a reference to “Deputy Sheriff, Higher Courts Registry” at a Brisbane PO Box.  This is an address which I have been advised by the Registry is no longer used.  There is an “Office of the Director of Public Prosecutions” received stamp on the document.  This is dated 31 July 2008.  The document contains the date of first appearance in the Magistrates Court, the committal date, the fact there was no cross-examination, the place of the committing court, the name, address, date and place of birth of the defendant, the fact he was not indigenous, that he has been committed for sentence to the District Court at Brisbane, and the identity of his legal representative.  It is a pro forma document which also includes:

“Statement of Defendant:  I plead guilty to two charges.”

After a blank space follows “Co-accused”, the two committal charges are listed.  This is followed by:

“Bail: Allowed Bail (Enclosed)

Witness: AS ATTACHED Index to brief

Exhibits enclosed: AS ATTACHED Index to brief

Other exhibits: NIL:

Contact officer: Depositions Clerk

Contact phone: 5431 2200”

The words “Index to brief” appear to be written on the document. Experience is that the transmission sheet and any bail undertaking are attached to new indictments presented to the District Court. Therefore it is reasonable to proceed on the basis this is the explanation for how a copy of the transmission sheet has become attached to the court file. It is also reasonable to conclude the biro ticks, writing and figures on the face of the transmission sheet have been made by registry staff after it has come into the court’s possession in this way. These markings indicate there has been no change to the two committal charges which have been indicted as count 2, and a new charge of “Dangerous Op” under “Criminal Code 328A” has been added as count 1.

18. [18]
    On 8 September 2008 the Office of the Director of Public Prosecutions (the DPP) corresponded with the applicant’s solicitor, in what is described as “the usual way”, inviting the provision of any submissions or requests as to sentencing range.^[15]

19. [19]
    On 7 October 2008 the DPP sent facsimile correspondence to Mr Braithwaite’s office attaching the indictment which included as count 1 the charge of dangerous operation of a vehicle causing death and grievous bodily harm and a Notice of Trial advising it was to be presented on 16 October 2008.^[16]  It is said on behalf of the applicant that this charge was brought against him without warning.^[17]

20. [20]
    After this indictment, which was signed by a Crown prosecutor, was presented on 16 October 2008, a submission was forwarded on the applicant’s behalf to the DPP contending that count 1 be discontinued in lieu of his maintaining his pleas of guilty to the alternative count 2, which reflects his pleas of guilty to those charges at committal. The DPP rejected this submission, following which the present application was brought.^[18]

Applicant’s submissions

21. [21]
    The original basis of the application was a stay be granted of count 1 on the indictment because the applicant has not had the opportunity of a proper committal proceeding with respect to that charge.^[19]

22. [22]
    However, the applicant’s counsel, Mr Smith, commenced his oral submissions by advising me he did not proceed with the application on this basis, because his instructions are the applicant did not want a recommital.^[20]

23. [23]
    Instead Mr Smith submitted that:

3. (1)
   Section 17 of the Code applies, and the applicant had the defence of autrefois convict on count 1; and

3. (2)
   Count 1 is not valid as a crown law officer has not presented the indictment as required under s 561 of the Code.

24. [24]
    A stay is sought on the basis of the s 17 point, and it is sought to quash the indictment under s 596(1) of the Code as being formally defective on the basis of the second point, which involves the interpretation of s 561 of the Code.^[21]

The section 17 issue

25. [25]
    Section 17 of the Code provides:

“It is a defence to a charge of any offence that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person has been charged, or has already been acquitted on indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged.” (My emphasis)

26. [26]
    Reference is made to R v Viers,^[22] where an accused person who had pleaded guilty and was sentenced for an offence in the Magistrates Court was subsequently arraigned on an indictable offence before the Supreme Court, and pleaded autrefois convict in that he had been convicted in the Magistrates Court of an offence of which he might have been convicted on the indictment. Thomas J held that the final alternative set out in s 17 of the Code is not limited to conviction on indictment; an earlier summary conviction of an offence of which he might be convicted upon the indictment could be raised. His Honour said:^[23]

“A close perusal of the section shows that whilst most of it is limited to former convictions or acquittals upon indictment, the final alternative is not so limited. It covers a former conviction “of an offence” of which he might be convicted upon the indictment on which he is charged. Many alternative counts or offences open on an indictment are offences capable of summary trial. In my opinion an earlier conviction for such an offence can be raised whether it was recorded summarily or on indictment … For the reasons I have mentioned, I consider that the last limb of s 17 is not limited to convictions upon indictment. Accordingly, the conviction … before the magistrate is available for the accused to use here.”  (My emphasis)

27. [27]
    Mr Smith also relies on Maxwell v The Queen^[24] and accepts on the basis of this decision that there is no doubt there must be some act on the part of the court for a conviction to occur. However, he argues this does not necessarily have to be the actual sentence. In support of this proposition he stresses the references in Maxwell to “determination of guilt”^[25] or “the formal entry of the plea of guilty on the court record.”^[26]  He also relies on Aickin J who considered in Griffiths v The Queen^[27] that the step of remanding the accused for sentence was an “unequivocal indication” the accused had been found guilty because that step could not ordinarily be taken without there being a conviction.^[28] He observes that in Hinton v R^[29] there is reference to “judgment, decree, and order.”  This is in the context that the Full Court of the Federal Court has jurisdiction under s 24(1)(b) of the Federal Court of Australia Act 1976 to hear and determine appeals from judgments, and “judgment” means “a judgment, decree or order, whether final or interlocutory, or a sentence.”  The court held s 24(1)(b) does not provide any right of appeal from a conviction, still less from the verdict of a jury, until the court at first instance has entered a judgment upon that verdict, by for example, recording a conviction.^[30]

28. [28]
    Mr Smith observes that s 16 of the Code also applies to the situation where a person has been sentenced.

29. [29]
    He submits by way of example that the administration of the allocutus constitutes the court’s acceptance of the plea. In support of this he cites McPherson JA (with whom Davies and Thomas JJA agreed) in R v Lowrie and Ross^[31] where he said:^[32]

“Conviction on indictment is generally speaking, the equivalent of judgment in civil proceedings:  see Cobiac v Liddy (1969) 119 CLR 257, 270-273; and, taken by itself, neither verdict nor plea of guilty ordinarily constitutes a conviction until it is accepted by the court, which is most often manifested by administering the allocatus (sic) preparatory to the sentencing. See R v Jerome [1964] Qd R 595. There is a discretion in the court to permit a plea of guilty to be withdrawn if circumstances warrant or require it; but none at all to enable a mere willingness to plead to be treated as the equivalent of conviction or judgment on the indictment.”

30. [30]
    Mr Smith then makes reference to s 113 of the JA which provides the procedure if a defendant pleads guilty in the Magistrates Court as follows:

“Division 6 Defendant admitting guilt

113 Procedure if defendant pleads guilty

3. (1)
   If the defendant, upon being addressed by the justices pursuant to section 104(2) says that he or she is guilty of the charge the justices, instead of committing the defendant to be tried, shall order the defendant to be committed for sentence before some court of competent jurisdiction, and, in the meantime shall, by their warrant, commit the defendant to prison to be there safely kept until the defendant is delivered by due course of law or granted bail.

3. (4)
   If, having regard to the length of time which should elapse before a court of competent jurisdiction next sits at a place to which the defendant would in the absence of this subsection be committed for sentence, the justices are of the opinion—

3. (a)
   that it would be just that the defendant should be sentenced for the offence at some other place before a court of competent jurisdiction, the justices may, with the prior consent in writing of the defendant (which consent shall be kept with the depositions of the witnesses), order the defendant to be committed for sentence for the offence at such other place before such court;

3. (b)
   that, by reason of the expense likely to be incurred in the keeping or preservation of any exhibit tendered in evidence upon the examination of witnesses and to be, or proposed to be, tendered as an exhibit upon the appearance of the defendant for sentence, the defendant should be sentenced for the offence at some other place before a court of competent jurisdiction, the justices may order the defendant to be committed for sentence for the offence at such other place before such court.”  (My emphasis)

He relies on the fact there must be an order for a committal for sentence. He observes that “order” is defined widely in s 4 of the JA. Section 4 provides:

“4 Definitions

In this Act—

…

order includes any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it, but does not include any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the last mentioned case, whether or not the justices are sitting as a Magistrates Court or to hear an examination of witnesses in relation to an indictable offence.”

31. [31]
    Further, he submits that “order” was widely defined in Gibson v Canniffe & Ors.^[33]

32. [32]
    His oral submission was that s 113 of the JA requires a magistrate to commit for sentence once a plea of guilty has been entered, and the committal involves an acceptance to the plea of guilty.^[34] Although he clarified that he was relying on a combination of the act of endorsing the court file that there has been a plea of guilty, and the order for committal for sentence.^[35]

33. [33]
    He refers to the circumstances where after pleas of guilty were indicated by the defendant’s legal representative and entered by the applicant, there was a committal of the applicant for sentence, the committal order was noted on the transmission sheet, and he was required to sign a form which effectively stopped him from changing his plea in the higher court. It is submitted in these circumstances that there has been an unequivocal act on the part of the Magistrates Court concerning the two charges under s 43(1) of the TOSMA. It is therefore submitted the applicant has already been convicted summarily of these offences, and that by virtue of count 2 of the indictment which combines them into one offence, he has already been convicted of an offence of which he might be convicted upon the indictment with which he is charged, with the result that s 17 of the Code applies and he has the defence of autrefois convict to count 1.

34. [34]
    It is also submitted s 600(4) of the Code is no answer as to whether a conviction has occurred in these circumstances. This sub-section must be considered in the context of s 600 which provides:

“600 Persons committed for sentence

3. (1)
   When a person has been committed by a justice for sentence for an offence, the person is to be called upon to plead to the indictment in the same manner as other persons, and may plead either that the person is guilty of the offence charged in the indictment or, with the consent of the Crown, of any other offence of which the person might be convicted upon the indictment.

3. (2)
   If the person pleads not guilty, the court, upon being satisfied that the person duly admitted before the justice that the person was guilty of the offence charged in the indictment, is to direct a plea of guilty to be entered, notwithstanding the person’s plea of not guilty.

3. (3)
   A plea so entered has the same effect as if it had been actually pleaded.

3. (4)
   If the court is not so satisfied, or if, notwithstanding that the accused person pleads guilty, it appears to the court upon examination of the depositions of the witnesses that the person has not in fact committed the offence charged in the indictment or any other offence of which the person might be convicted upon the indictment, the plea of not guilty is to be entered, and the trial is to proceed as in other cases when that plea is pleaded.

3. (5)
   A person who has been committed for sentence may plead any of the other pleas mentioned in section 598.”

The section 561 issue

35. [35]
    Section 561 of the Code which confers the power to present an ex officio indictment provides:

“561 Ex officio indictments

3. (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.

3. (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 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 person’s prior consent has been committed for trial or for sentence for an offence before that court.

3. (3)
   Also, if an indictment is signed by a person authorised to sign the indictment under this section, a DPP presenter may present the indictment to the court stated in the indictment.”

36. [36]
    It is submitted that s 561 is an exception to s 560 of the Code which requires the charge brought against the defendant be that charge with respect to which he was committed for trial. It is accepted that by virtue of s 1 of the Code, the reference to trial includes a sentence.

37. [37]
    It is conceded if a crown law officer^[36] had signed and presented the indictment charging the offence of dangerous operation of a vehicle causing death and grievous bodily harm in count 1, subject to any abuse of process arguments, the court would be bound to accept it, although the applicant had not been committed on that charge.^[37]

38. [38]
    However, Mr Smith submitted that where, as in this case, a Crown prosecutor or a person appointed by the Governor-in-Council to sign and present indictments in any court of criminal jurisdiction, has done so, in respect of a person committed for sentence on charges other than for which there has been a committal, this may only be done if the person has consented to this.^[38] This is because of the words, “and against any person for an indictable offence who with the person’s prior consent has been committed for trial or for sentence for an offence before that court” in              s 561(2).

39. [39]
    It was orally submitted that the consent issue governs the section generally, or alternatively, it governs a committal for sentence as had occurred in the present case.^[39] It was also submitted that if there was any doubt about the true meaning of the section, the construction which favours the applicant should be adopted.^[40]

40. [40]
    In the written Further Outline of Submissions on behalf of the applicant it was submitted the general should be subject to the specific, ie, the situation where there is a committal for sentence. The maximum generalius specialibus non derogant applies. In the circumstances it is submitted count 1 of the indictment is not valid as a crown law officer has not presented it.^[41]

41. [41]
    The submissions also note that s 561(2) was amended by the Criminal Proceeds Confiscation Act 2002 (see s 305). The explanatory notes to the Act state that the amendment related to the practice of presentation of indictments to the court by someone other than a Crown prosecutor. It was noted there was a Court of Appeal decision in which judgment was to be delivered on or after 6 December 2002 concerning a challenge to this practice, which may compromise the validity of criminal proceedings, if the challenge was successful.^[42] It was therefore submitted, that on one construction the purpose of the insertion of this amendment was to permit someone other than a Crown prosecutor to present the indictment (also see   s 561(3)).^[43]

42. [42]
    Reference was also made in oral argument to R v Suigzdinis and Mauri,^[44] a decision of Muirhead J in the Supreme Court, Northern Territory. My attention was particularly drawn to his Honour’s observations that, “it is essential as a general rule that indictments should be laid for those offences in respect of which the accused has been committed for trial,”^[45] and “An ex officio indictment should be so described in the document”.^[46] He also said, “It would in my view be sound practice to ensure an indictment laid ex officio is so described in the body of the document to ensure there is no misunderstanding”.^[47] Mr Smith noted that despite count 1 being included in the indictment, it is not described as an ex officio indictment in the present case.^[48]

43. [43]
    Mr Smith also referred to Muirhead J quoting from R v Webb,^[49] and in particular the passage from the judgment of Philp J (with whom Stanley and Matthews JJ agreed):

“Although s 561 gives the Crown an uncontrolled power of indictment without prior committal proceedings, in practice the power is used for two purposes. The first use is when a man has been committed for trial for an offence and the depositions disclose evidence of a different offence or of other offences; in such circumstances it is convenient and just that an indictment charging the different or other offences should be presented by the Crown prosecutor. Due notice of the new charges should be given and if it be not given the judge may adjourn the trial.

The second use which has become increasingly common is when a man consents to plead guilty to a charge in respect of which no committal proceedings whatever have been taken.”

Respondent’s submissions

The section 17 issue

44. [44]
    Ms Bain on behalf of the respondent conceded that the real issue to be determined concerning the application of s 17 of the Code is whether or not in the circumstances the applicant’s committal for sentence constituted a conviction.^[50]

45. [45]
    She argues with reference to Maxwell v The Queen^[51] and R v Tonks and Goss^[52] that the mere entering of a plea of guilty does not amount to a conviction for these purposes. It is argued this is especially the case where the charge under the TOMSA is offered only as an alternative charge for the jury and is not accepted by the Crown in full satisfaction of the indictment.^[53]

46. [46]
    It is submitted that “conviction” for the purposes of considering a plea of autrefois convict must be some overt and unequivocal act by the court, ie, unequivocally indicating an intention to convict; and in circumstances where the applicant’s legal representatives conceded there was no need to consider the material, and consented to the matter being committed for sentence to the District Court so that the magistrate has simply committed for sentence in accordance with s 113 of the JA, the magistrate has done no more than consider the matter in an administrative fashion. The magistrate is required to commit for either sentence or trial depending on the plea of the defendant. The “acceptance” of a plea of guilty under s 113 requires no more than the administrative function of transferring the matter to another court for final determination. Therefore it is submitted it is difficult to argue there has been a “conviction” by the magistrate when he has not been required to consider the material tendered by consent.^[54]

47. [47]
    While it is accepted that the line of authorities which consider what amounts to a “conviction” do not conclusively determine this issue, it is submitted it is clear a conviction requires some final determination by a court in finding a person guilty, which must also involve the judgment of the court. It is argued this must be so, especially when considering whether the applicant would be “convicted” twice if count 1 was to remain on the indictment in this case. Reference is made to Hinton v R^[55] where the comments made in R v Tonks and Goss^[56] and R v Jerome and McMahon^[57] are adopted as follows:

“When dealing with the term “conviction” a court will not be taken to have convicted a person unless it does some act which unequivocally indicates that this was the intention. A plea of guilty which is recorded, but not accepted by the Crown, is not a “conviction” for the purposes of a plea of autrefois convict.”

It is submitted to use the words from the judgment in R v Jerome and McMahon,^[58] the committing magistrate, in complying with the administrative functions of s 113 of the JA “has done nothing upon the plea of guilty to indicate a determination of the question of guilt.”

48. [48]
    After quoting from R v Lowrie and Ross^[59] as set out in para [29] of this judgment, it is said on behalf of the respondent that the allocutus is regarded as the “formal demand” contemplated by s 648 of the Code. It is regarded as manifesting acceptance by the court of the guilty verdict of the jury or the plea of guilty from an accused. The convicted person is afforded the opportunity to make application to be heard under s 649 before the court proceeds to sentence.

It is submitted however, in the context of relying on a plea of autrefois convict, even the administration of the allocutus would not be sufficient to amount to a conviction. This is because it still requires the consideration of the court to accept that the facts placed before it constitute the elements of the offence, in order to be satisfied the offence has been made out, and for the court to pass judgment and sentence.^[60]

49. [49]
    Reference is also made to passages from the judgments of the New Zealand Court of Appeal in R v Sorby^[61] and the High Court of Australia in Maxwell v The Queen^[62] as to what amounts to a conviction.

50. [50]
    In R v Sorby it was said by Woodhouse J who delivered the judgment of the court, that on receiving the jury’s verdict:^[63]

“[The judge’s] formal responsibility at this stage is simply to give effect to the jury’s acquittal or conviction by a judgment and this takes the form of discharging the prisoner in the one event or by sentence in the other. The word “conviction” is often used to refer to the final disposal of the case following upon a verdict of guilty and this wider meaning of the word probably leads to some confusion as to when the accused person can be regarded as having been convicted:  see S v Recorder of Manchester [1971] AC 481, 489; [1969] All ER 1230, 1232. Nevertheless, once accepted by the judge it is that verdict that amounts to a conviction and the case is then beyond further examination or review.”  (My emphasis)

51. [51]
    In Maxwell v The Queen Dawson and McHugh JJ said in the context of a plea autrefois convict:^[64]

“… and in that context it would seem clear that a verdict or plea of guilty is insufficient to constitute a conviction.  That accords with the principle lying behind the plea of autrefois convict which is that a person should not be punished more than once for the same matter.”  (My emphasis)

52. [52]
    It is therefore submitted that in the circumstances of this case the mere entering of a plea in the lower court, coupled with an order for committal of the matter for sentence, cannot amount to a conviction which might support a plea of autrefois convict.

The section 561 issue

53. [53]
    Ms Bain relies on the decision of McKenzie J in R v Harker^[65]for the proposition there is a very wide power to present ex officio indictments.

54. [54]
    She places particular emphasis on the use of an ex officio indictment, “where the Crown decides that the charges which have been committed either for trial or sentence are not necessarily appropriate and that another charge is put on the indictment which is presented to the Court.”^[66] It is argued this is similar to the first purpose for which the power is used to present an ex officio indictment, identified in R v Webb,^[67] except in that case reference is only made to being “committed for trial”. When I queried the extent to which this happens with sentences, Ms Bain replied it “happens less often when matters have been formally committed through the Magistrates Court for sentence, but that’s largely because where matters are committed for sentence from the Magistrates Court is less common than what we ordinarily understand the term ex officio indictment to mean, where pleas of guilty are done by way of skipping the committal process.”^[68]

55. [55]
    She submits the Crown is entitled to present the charge the subject of count 1 under that part of s 561(2) which provides:

“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 an indictable offence, whether the accused person has been committed for trial …”

It is submitted the following words, “and against any person for an indictable offence who with the person’s prior consent has been committed for trial or for sentence for any offence before that court” do not add any extra requirement or condition to the first part of the subsection.^[69] In her submission, if it were otherwise, it would be superfluous to repeat “against any person” in the second part of the subsection.^[70] Further, it is argued the two parts of the subsection deal with two different scenarios. The first part deals with whether or not there has been a committal; and the second part deals with when the person has been committed.^[71]

56. [56]
    Reference is made to some of the general principles associated with ex officio indictments in R v Foley^[72] where the Queensland Court of Appeal said:^[73]

“[25] The purpose of s 561 appears to have been to permit the presentation of an indictment for an indictable offence against a person not withstanding that that person has not been committed for trial on that offence. We would construe the phrase “whether the accused person has been committed for trial or not” in s 561(1) to mean whether or not the person has been committed for trial on some other offence; to rebut an argument that, once a person has been committed for trial for an offence, he may only be indicted for that offence. So construed, it does not permit the presentation of an ex officio indictment for an offence in respect of which a defendant has been committed for trial. To construe it so as to permit that result would be to permit circumvention of a safeguard which the legislature provided to a defendant to ensure a prompt prosecution and discharge.

[26] Once that is accepted, the phrase “subject to section 561” in s 590 may be given a sensible meaning. It was intended to make it clear that that section does not prevent the presentation, pursuant to  s 561, of an ex officio indictment against a person for an offence other than that on which he has been committed for trial, as s 561 envisages.”  (My emphasis)

It is submitted that this interpretation of “whether the accused person has been committed for trial or not” must apply equally to s 561(2), allowing an indictment to be presented for the count of dangerous operation of a vehicle causing death or grievous bodily harm in this case.^[74]

57. [57]
    Ms Bain also relies upon R v Sutton^[75] where Henchman J stated:^[76]

“With regard to the point as to whether the Crown prosecutor was justified in law in indicting this young man with a major offence under s 210 when he was committed for sentence under   s 211, I know of nothing that can prevent the Crown prosecutor having power to exercise the discretion granted to him under      s 561 of the Criminal code, second paragraph, which enables him, as the officer appointed by the Governor in Council, to present the indictment in a particular court of criminal jurisdiction against any person for any indictable offence within jurisdiction of the Court whether the accused has been committed for trial or not … that provision is universal in its terms and applies to all indictable offences throughout the Code, and is not in any way limited, as has been suggested, to cases where, without any sort of preliminary inquiry, an accused person may be indicted by a Crown prosecutor.”  (My emphasis)

Hart AJ agreed and said:^[77]

“I have only to add that a close study of the provisions of ss 113 and 114 of the Justices Acts and ss 560, 561 and 600 of the Criminal code has led me to the conclusion that the decision just pronounced is the correct one. Indeed I should regret if the law were otherwise, because it would, to my mind, be shocking that a plea of guilty to a minor offence before justices would preclude the Crown prosecutor from indicting a prisoner for a major offence clearly disclosed by the evidence.”  (My emphasis)

Graham AJ agreed with Henchman J as “to the unlimited effect of s 561”^[78] and with Hart J “as to the true intent of s 113 of the Justices Act of 1886 and ss 600 and 561 of the Criminal Code”.^[79] I note he also observed during argument, “section 600 points to the matter being incomplete until the matter reaches the Supreme Court.”

58. [58]
    In the course of her initial written submission, Ms Bain also argued that:^[80]

“The presentation by the Crown of additional charges on an indictment is a standard procedural matter, and one which is specifically allowed under the provisions of the Code. It is submitted that there has been no miscarriage of justice in the present circumstances where the evidence has not changed from that presented at the committal hearing. A ‘no case’ submission can be made at the conclusion of the prosecution case, but it is submitted that this ultimate issue is a question for the jury. In any event, had the submission been made at the lower court and the charge dismissed, it is submitted that this would still not have prevented the Director’s office presenting the indictment in question.”

Discussion

The section 17 issue

59. [59]
    The issue for determination is whether in the circumstances of this case the applicant’s committal for sentence, in conjunction with the committal order being noted on the transmission sheet and the requirement he sign a form which is said to effectively stop him changing his plea in the District Court, constituted a conviction for the purposes of s 17 of the Code.^[81]

60. [60]
    As was recognised in Maxwell v The Queen:^[82]

“The question of what amounts to a conviction admits of no single comprehensive answer. Indeed, the answer to the question rather depends on the context in which it is asked.”

61. [61]
    The cases which have been referred to me on this question are in the context of pleas of guilty entered before higher courts. The only case referred to, in which a person committed for sentence on one offence has been indicted on another offence, is R v Sutton.^[83]  In that case the appellant pleaded guilty and was committed for sentence to the Supreme Court, on two charges under s 211 of the Code of indecent practices between males. He was indicted before the Supreme Court on two charges under ss 210 and 211 of the Code that he unlawfully and indecently dealt with boys under the age of fourteen years, and further, that at the time aforesaid he committed an act of gross indecency with a male person. It was submitted on his behalf that as he had been charged in the lower court under s 211 of the Code, pleaded guilty, and was committed for sentence, he could not be indicted of a major offence arising out of the same set of facts. Although s 17 was not referred to for the reasons set out in paragraph [57] of this judgment, this argument was rejected by the court.

62. [62]
    Mr Smith accepts that there is no doubt there must be some act on the part of the court for a conviction to occur. This is in accordance with Maxwell v The Queen^[84] which approved R v Tonks and Goss^[85] and R v Jerome and McMahon.^[86]

63. [63]
    In considering a plea of autrefois convict in R v Jerome and McMahon Gibbs J held that the following statement of law from R v Tonks and Goss was applicable to the position which arises under the Code:^[87]

“… a plea of guilty does not of its own force constitute a conviction … A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with determining the guilt of the accused … there must at least be a determination of guilt before there can be a conviction. There can accordingly be no conviction on a count to which the accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilt.”  (My emphasis)

Gibbs J considered that if this was not the law it would seem there would be no power for the court to allow a plea of guilty once made to be changed to a plea of not guilty.^[88] He said that the court might indicate a determination of a question of guilt, “by imposing a punishment; by discharging a prisoner on his own recognisance; by releasing him on parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained.”^[89]

64. [64]
    As in the present case and in R v Jerome and McMahon, the context in which the issue of what constitutes a conviction arose in Maxwell v The Queen^[90] was that of autrefois convict. In that case when he was arraigned in the Supreme Court the appellant pleaded not guilty to murder but guilty to manslaughter. The Crown accepted the plea to manslaughter on the basis of diminished responsibility, in full satisfaction of the indictment. The relevant legislation did not prescribe an allocutus.^[91] The judge then received evidence for the purpose of determining the sentence to be imposed on the appellant. The Crown’s evidence included a summary of facts, records of interview, witness statements, photographs, and a psychiatric report. On the appellant’s behalf there was a report from another psychiatrist and a bundle of references. After hearing submissions from counsel on the matter of sentence, the judge said he would consider the matter and remanded the appellant for sentence. After a further remand, the judge rejected the plea of guilty to manslaughter. The appellant argued the judge was in no position to reject his plea because he had already been convicted of manslaughter. The High Court held he had not been convicted but set aside the order rejecting the plea of guilty.

65. [65]
    Dawson and McHugh JJ said, referring with approval to the passages from R v Tonks and Goss and R v Jerome and McMahon:^[92]

“That view was implicitly (explicitly in the case of Aitkin J) adopted by a majority of the High Court in Griffiths v The Queen. Thus, whilst a plea of guilty is a confession of guilt, it does not itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court.  The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plan.”  (My emphasis)

66. [66]
    Toohey J having reviewed these cases and other authorities said:^[93]

“Thus Australian authority indicates that at common law conviction encompasses a determination of guilt by the court but does not necessarily require judgment on the basis of that determination. There are a number of ways in which a court may show acceptance of a plea of guilty. The judge may expressly indicate that the accused was convicted before making any order in relation to the conviction. Another way in which the court may act upon a plea of guilty is by the allocutus … The allocutus was not given here. There may be implied acceptance, for instance by proceeding to pass sentence, or by calling for the record from the gaol recorder. In Griffiths v The Queen, Aitkin J held that the remanding for an accused for sentence after a plea of guilty was an unequivocal indication that the accused had been found guilty because the step of remanding could not be taken without recording a conviction.”

67. [67]
    Gaudron and Gummow JJ said:^[94]

“The nature of the exercise involved in the rejection of a plea and in the grant of leave to withdraw a plea is such, in our view, that it must be concluded that conviction only occurs when the court does some act which indicates that it has determined guilt or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question.  As was pointed out in Jerome and McMahon, that may appear, for example, by the court’s ‘imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained.’” (My emphasis)

68. [68]
    Dawson and McHugh JJ also said:^[95]

“In these days … a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused … It is the disposal of the case which results in the judgment of the court embodying a determination of guilt.”

Their Honours thought that for this reason, the hesitancy displayed by Gibbs J when he said in R v Jerome and McMahon that a determination of guilt may “even perhaps” be made “by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained”, was justified. In their view, while a matter may be disposed of otherwise than by sentence, an adjournment of proceedings, or the remand of a prisoner for sentence does not ordinarily amount to the disposal of a matter, save in unusual circumstances where the accused pleads guilty and is remanded for sentence in twelve months on condition he enter into a good behaviour bond for that period.^[96]

Their Honours also referred to Richards v The Queen^[97] where the Privy Council observed the underlying rationale of autrefois convict is to prevent duplication of punishment, and that for the application of the doctrine, finality of adjudication is essential.^[98]

They concluded that by remanding the appellant for sentence, the judge did not accept the plea in any way which amounted to a determination of guilt and, hence, a judgment of the court; and consequently the appellant was not precluded from seeking leave of the court to change his plea should he wish to do so. However, he did not wish to do so. And while no conviction stood in the way of the court rejecting the plea, it had no power to take such a course.^[99]

69. [69]
    On the other hand, Gaudron and Gummow JJ, while accepting that imposition of a sentence will amount to an indication there has been a determination of guilt, expressed the view that an approach which would make conviction depend on this is inconsistent with observations in the separate judgments of Barwick CJ, Jacobs and Aitkin JJ in Griffith v The Queen.^[100]

Their Honours said, with reference to the judgment of Aitkin J in that case:^[101]

“[He] considered that the step of remanding the accused for sentence was “an unequivocal indication” that the accused had been found guilty because that step could not be taken without there being a conviction. Ordinarily, that will be so. However, there may be circumstances which indicate that the remand is provisional, in the sense that it will be treated as if it were a remand for sentence, rather than a general remand, if the plea is accepted and the accused convicted.”

They considered that apart from the order the appellant be remanded in custody for sentence, there was nothing to indicate there had been a determination of guilt. One of the matters which indicated the contrary was that the judge indicated he would “consider the matter”, not that he would consider the sentence to be imposed. Concerning this, their Honours said:^[102]

“In these circumstances the remand for sentence is, in our view, to be treated as provisional in the sense indicated and not as involving a determination of guilt.”

It followed the appellant had not been convicted of manslaughter.

70. [70]
    As stated in R v Lowrie and Ross, taken by itself a plea of guilty does not ordinarily constitute a conviction until it is accepted by the court, “which is most often manifested by administering the allocatus (sic) preparatory to sentence.”^[103] In R v Sorby it was also held that it is the acceptance of the verdict by the judge that amounts to a conviction.^[104] As stated in Hinton v R what is necessary is some act which unequivocally indicates that it is the court’s intention to convict.^[105]

71. [71]
    It follows from these authorities that a plea of guilty does not ordinarily constitute a conviction until there has been an act of the court, or the arm of the court charged with determining the guilt of the accused, which amounts to an unequivocal determination of guilt, and which acceptance of the plea is most often manifested by administering the allocutus.

72. [72]
    An essential element of a conviction as recognised in the context of a plea of autrefois convict by Gibbs J in R v Jerome and McMahon,^[106] applying the passage from R v Tonks and Goss^[107] cited with approval by the High Court in Maxwell v The Queen,^[108] is that the determination of guilt must be the act of “the court or the arm of the court charged with determining the guilt of the accused.”  In the present case this is the District Court, and not the Magistrates Court.

73. [73]
    The Magistrates Court in conducting the committal proceedings which resulted in the applicant’s committal for sentence was not charged with this responsibility. This is clear when regard is had to the nature of committal proceedings and how those proceedings were conducted in the circumstances of this case.

74. [74]
    Committing magistrates are performing an administrative and not a judicial function.^[109]

75. [75]
    Mr Smith referred to Gibson v Canniffe & Ors^[110] in support of his submission that “order” in s 4 of the JA is widely defined. However, in that case Devereaux SC ADCJ (as he then was) noted that the essential distinction drawn in the definition of that term is between orders made by the court as the Magistrates Court and orders made by the court as justices hearing an examination of witnesses in relation to an indictable offence.^[111] As his Honour illustrates, this distinction between summary proceedings on the one hand, and an examination of witnesses in relation to an indictable offence on the other, is drawn in many provisions of the Act; and reflects the distinction between the judicial function (Part 6 proceedings) and the administrative committal function (Part 5 proceedings).^[112]

76. [76]
    His Honour summarised the procedure set out in Part 5 Division 5 for an examination of witnesses in relation to an indictable offence, and concluded:

“It is notable that the possible outcomes in Part 5 proceedings are committal for trial or sentence or discharge of the defendant, not dismissal of the complaint.”^[113]

77. [77]
    His Honour held the administrative decision under Part 5 whether to commit for trial or discharge the defendant is not within the definition of “order” under s 4, whereas the judicial decision to convict or dismiss, under Part 6 clearly is.^[114] Although the definition of “order” does not expressly include any order made by justices committing a defendant for sentence for an indictable offence, I consider that a similar position applies concerning it. In my view, the reason it is not expressly mentioned is that it was not considered necessary in circumstances where any appeal against a committal for sentence following a plea of guilty would be unlikely.

78. [78]
    These administrative committal proceedings in the present case were conducted under s 110A(2) of the JA which provides:

1. “(2)
   Justices conducting proceedings with a view to determining whether a defendant should be committed for trial or sentence in relation to an indictable offence may, subject to the provisions of this section being satisfied, admit as evidence written statements of witnesses tendered to them by the prosecution or the defence without those witnesses appearing before them to give evidence or make statements.”

79. [79]
    Section 110A(6) then provides:

“Subject to this section, where –

2. (a)
   all the evidence before the justices (whether for the prosecution or the defence) without reference to other evidence by way of exhibits, consists of written statements admitted in accordance with this section; and

2. (b)
   the lawyer for the defendant consents to the defendant being committed for trial or, as the case may be, for sentence without consideration of the contents of the written statements;

the justices without determining whether the evidence is sufficient to put the defendant upon trial for an indictable offence, shall formally charge the defendant and with necessary adaptions, the provisions of s 104 shall apply and subject thereto, the justices shall order the defendant to be committed for trial or, as the case may be, to sentence.”  (My emphasis)

This is what happened in the present case where immediately upon the witness statements and exhibits being tendered, and without the magistrate having the opportunity to read and consider them, the applicant’s legal representative consented to the applicant being committed to the District Court without consideration of the statements and exhibits. Upon being charged and addressed under s 104(2) of the JA as required, the applicant confirmed this was the case, by responding to the magistrates question, “[Your legal representative] has indicated that you wanted to plead guilty, is that the case?” with the answer, “Yes, it is.”  In context this was clearly a plea of guilty to both charges and it was so interpreted in the transmission sheet which records:

“Statement of Defendant:  I plead guilty to two charges.”

The magistrate then said, in accordance with s 110A(6)(b):

“That being so, sir, you are formally committed for sentence to the criminal sittings of the District Court …”

This was clearly in compliance with the mandatory requirement of the section to do so, “without determining whether the information is sufficient to put the defendant upon trial for an indictable offence.”

The procedure adopted was not subject to any further requirements of the section, such as s 110A(9) in this case; and the general procedure under s 113 if the defendant pleads guilty is to be read subject to the specific requirements of             s 110A(6)(b) which is applicable in these circumstances.

80. [80]
    Significantly, the mandatory requirement under s 110A(6)(d) is to be contrasted with the requirement when the defendant’s lawyer does not consent to the defendant being committed for trial or sentence, in which case s 110A(10) provides:

“Where all the evidence before justices consists of written statements admitted in accordance with this section and the defendant’s lawyer does not consent to the defendant being committed for trial or for sentence, the justices, after hearing any submissions the prosecution and the defence desire to make, shall determine whether the evidence is sufficient to put the defendant upon trial for an indictable offence, where upon the provisions of this part shall apply as in the case of an examination of witnesses where there are no written statements admitted pursuant to this section.”

81. [81]
    Therefore, the procedure required to be followed in this case where the defendant’s legal representative consented to the defendant being committed for sentence without consideration of the contents of the written statements, and the defendant confirmed this by his plea of guilty, is the antithesis of what is essential to constitute a conviction. Not only did it involve no act of the court or the arm of the court charged with determining the guilt of the applicant, but also there was no unequivocal determination of guilt. The court was expressly required not to determine whether the evidence was sufficient to put him on trial for the indictable offences to which he had pleaded guilty, let alone, his guilt of those offences. This is distinguishable from the situation which would exist, if the applicant was to plead guilty before the court or the arm of the court charged with determining his guilt, the allocutus administered and the step taken of remanding him for sentence, which on one view of the authorities cannot be taken without there being a conviction.

82. [82]
    The position is not altered because the committal for sentence was in conjunction with the committal order being noted on the transmission sheet and the requirement the applicant sign a form effectively stopping him changing his plea in the District Court.

83. [83]
    Transmission of depositions is governed by s 126(1) of the JA which provides:

“When a defendant is committed to be tried or for sentence the committing justices shall, as soon as practicable after such committal, transmit, or cause to be transmitted all information, depositions, statements and undertakings as to bail relating to such committal in the following manner –

1. (a)
   where the committal is to a court to be held within the northern or far northern district – to a crown prosecutor stationed in that district;

2. (b)
   in all other cases – to the Attorney-General or director of public prosecutions.”^[115]

This is another purely administrative function which involves no unequivocal determination of guilt, as is illustrated by this case. The transmission sheet records the contact officer as the depositions clerk and not the magistrate. It is directed as required under s 126(1)(b) to the Office of the Director of Public Prosecutions at Brisbane, and not to the District Court or any other court. In fact, reference to the recipient being an officer of the court has been expressly struck out. A stamp on the document evidences that it has been received by the Office of the Director of Public Prosecutions, and not by the court. This pro forma document has clearly only come into the court’s possession through the usual procedure of being attached with the bail undertaking to the indictment, at the time of presentation.

84. [84]
    As such, the noting of the court order on the transmission sheet is of an administrative character, creating no more of an estoppel against the Crown than did the recording of the pleas of guilty by the bench clerk on the presentment and in the record book, referred to in R v Tonks and Goss.^[116]

85. [85]
    As indicated, the statement of defendant form which is said to effectively stop the applicant from changing his plea in the District Court, was not placed in evidence on the appeal, and is not part of the court file. This is the document, which the magistrate explained to the applicant was:

“… a document which acknowledges that you have pleaded guilty in the Magistrates Court that effectively stops you from changing your plea.”

86. [86]
    Even in the absence of the form, it is clear from s 600(4) of the Code that this is another administrative process which does not involve an unequivocal determination of guilt. I disagree with Mr Smith’s submission that this provision is no answer as to whether a conviction occurred in these circumstances. When s 600(4) is considered in the context of the whole section set out in paragraph [34], it appears that notwithstanding a person has been committed for sentence, a plea of not guilty is to be entered by the higher court if:

3. “(a)
   the court is not satisfied the person admitted before the Magistrates Court that he or she was guilty of the offence; or

2. (b)
   notwithstanding, the person pleads guilty, it appears to the court upon examination of the depositions, the person has not in fact committed the offence charged in the indictment or any other offence of which the person might be convicted upon the indictment.”

87. [87]
    In addition, under s 604(5) a person committed for sentence may plead any of the other pleas mentioned in s 598. These include autrefois convict, autrefois acquit, the receipt of a pardon, or absence of jurisdiction.

88. [88]
    As observed by Graham AJ in R v Sutton section 600 points to the matter being incomplete until the matter reaches the Supreme Court.^[117] I note the District Court was not in existence at that time.

89. [89]
    Therefore, the fact the applicant signed a document acknowledging he had pleaded guilty at the committal, was not a bar to a plea of not guilty being entered by the court, or to the court not proceeding to sentence him for another reason. Particularly in circumstances where the applicant has been committed for sentence by consent, without the magistrate being required to determine whether there was sufficient evidence to put him on trial for an indictable offence, this, whether in itself or in conjunction with other circumstances, does not constitute an unequivocal determination of guilt necessary to constitute a conviction.

90. [90]
    Further, the plea of guilty has not advanced to the stage of the administration of the allocutus which, as observed, has often been held to involve an acceptance of the plea of guilty by the court, sufficient to constitute a conviction.

91. [91]
    For completeness I add that the circumstances of this case are different to the cases of R v Grant^[118] and R v Sheridan^[119] which were discussed in R v Briggs.^[120] The position is summarised by the full Court of the Supreme Court of Victoria in R v Tonks and Goss ^[121] as follows:

“In the course of the judgment [R v Briggs] drew attention to the fact that in Sheridan’s and in Grant’s Cases the magistrates had followed the procedure proscribed in the Criminal Justice Act in cases where magistrates decide to deal summarily with an indictable offence, and said, at p 531:

“The court then proceeded to adjudicate. Sheridan was convicted on evidence, Grant on his own confession. In those cases, the court of summary jurisdiction, after thus adjudicating, refrained from passing sentence, and committed the accused for trial on indictment at the next court of quarter sessions. In those circumstances, this court held that a plea of autrefois convict would have been maintainable in answer to the indictment at quarter sessions.””

By contrast in R v Briggs^[122] the magistrate did not accept the plea and adjudicated on his case, and no plea of autrefois convict could be maintained by him.^[123]

92. [92]
    As the Privy Council observed in Richards v The Queen^[124] the underlying rationale of autrefois convict is to prevent duplication of punishment and that, for the application of the doctrine, finality of adjudication is essential.

93. [93]
    For the reasons I have given there has been no adjudication of the applicant’s case by the magistrate, and as such no plea of autrefois convict can be maintained by him.

94. [94]
    Returning to R v Sutton, if the law was that a person’s plea of guilty to an offence at committal proceedings conducted under s 110A of the JA, and consent to committal without the magistrate considering the contents of the statements tendered and without the magistrate determining whether the evidence is sufficient to put the person on trial for an indictable offence, would preclude his or her indictment for a more serious offence disclosed by the evidence, which makes him or her liable to a higher penalty, as observed by Hart AJ:

“… it would to my mind, be shocking that a plea of guilty to a minor offence before justices would preclude the Crown prosecutor from indicting a prisoner for a major offence clearly disclosed on the evidence.”

95. [95]
    This would be a surprising result, if, as in the present case the Director of Public Prosecutions had no role in determining the nature and seriousness of the initial charges.^[125] As deposed by Mr Braithwaite this decision was made by the Sunshine Coast Water Police who charged him. The “Police Reference” on the Bench Charge Sheets and the depositions confirm that Senior Constable Vickers of the Sunshine Coast Water Police issued the notices to appear for those charges. Police Prosecutions then had responsibility for the prosecution, including the decision not to consent to the charges being dealt with summarily, and appearing at the committal.

96. [96]
    For these reasons I conclude the applicant’s committal for sentence in conjunction with the committal order being noted on the transmission sheet and the requirement he sign a form, which is said to effectively stop him changing his plea of guilty in the District Court, does not constitute a conviction for the purposes of s 17 of the Code. There is nothing else which has been drawn to my attention which has this result.

97. [97]
    Therefore, s 17 of the Code does not apply and the defence of autrefois convict is not maintainable on count 1.

The section 561 issue

98. [98]
    As observed at paragraph [41] Mr Smith noted, with reference to the judgment of Muirhead J in R v Suigzdinis and Mauri,^[126]  count 1 is not described as an ex officio indictment.

99. [99]
    The Criminal Practice Rules 1999 (the Rules) impose duties on the Director of Public Prosecutions in relation to indictments, which include:

“Director of Public Prosecutions

20 ….

3. (2)
   If this indictment is an ex officio indictment, the director of public prosecutions must state the fact on the indictment.”

100. [100]
     Although r 20(2) has not been complied with in this case, as with the failure in R v Boulle^[127] to comply with a form made under the Rules, if the prosecution proceeds there is no reason why it cannot be cured. Although Mr Smith noted the omission, I do not understand him to take any particular point about the non-compliance. There is no doubt that so far as count 1 is concerned, this is an ex officio indictment. The applicant has suffered no prejudice as a result of the omission. I simply state consistently with the view of Fryberg J in R v Boulle^[128] that if the prosecution proceeds it should be cured; it matters that the court is able to see on the face of the indictment that count 1 is an ex officio indictment.

101. [101]
     Mr Smith argued count 1 was not valid as a crown law officer had not presented the indictment under s 561. He submitted that where, as in this case, a Crown prosecutor or a person appointed by the Governor-in-Council to sign and present indictments in any court of criminal jurisdiction has done so, in respect of a person committed for sentence on charges other than for which there has been a committal, this may only be done if the person has consented to this. It was argued this follows from the additional words in s 561(2):

“and against any person for an indictable offence who with the person’s prior consent has been committed for trial or for sentence for an offence before that court.”

102. [102]
     It was argued this consent issue governs s 561(2) generally, or alternatively, it governs a committal for sentence. It is submitted that the general should be read subject to this specific situation which deals with committal for sentence.

103. [103]
     On the respondent’s behalf, Ms Bain contends these words provide for a different situation, and do not add an extra requirement or condition to the first part of s 561(2).

104. [104]
     In the course of submissions I was referred to the purpose of the amendment of s 561(2) by the Criminal Proceeds Confiscation Act 2002. No reference was made to the Criminal Code and Justices Amendment Act of 1956 (the Amendment Act). This legislation, which amended ss 108 and 113 of the JA and s 561, is relevant to the interpretation.

105. [105]
     It was s 5 of the Amendment Act which amended what was then the second paragraph of s 561, and is now s 561(2) by adding, the words:

“and against any person for an indictable offence who with his prior consent has been committed for trial or for sentence for an offence before that Court.”

106. [106]
     This amendment was made in conjunction with the amendment of s 113 of the JA. Section 8 of the Amendment Act added a proviso to s 113 in the following terms:

“Provided further that if, having regard to the length of time which shall elapse before a Court of competent jurisdiction next sits at a place to which the defendant would in the absence of this proviso be committed for sentence as aforesaid, the justices are of the opinion that it would be just that the defendant should be sentenced for the offence at some other place, before a Court of competent jurisdiction, the justices may, with the prior consent in writing of the defendant (which consent shall be kept with the depositions of the witnesses) order him to be committed for sentence for the offence at such other place before such Court.” (My emphasis)

107. [107]
     Section 7 of the Amendment Act added a proviso in similar terms to s 108 of the JA with the words “committed to take his trial” instead of “committed for sentence” and “the trial of the defendant should be held” instead of “the defendant should be sentenced for the offence.”

108. [108]
     When a new s 113 was substituted by s 45 of the Justices Acts Amendment Act of 1964, this proviso became s 113(4) in the following terms:

“If, having regard to the length of time which should elapse before a court of competent jurisdiction next sits at a place to which the defendant would, in the absence of this subsection, be committed for sentence, the justices are of the opinion that it would be just that the defendant should be sentenced for the offence at some other place, before a court of competent jurisdiction, the justices may, with the prior consent in writing of the defendant (which consent shall be kept with the depositions of the witnesses) order him to be committed for sentence for the offence at such other place before such a court.” (My emphasis)

It can be seen that the only alteration to the wording from the terms of the proviso added in 1956 was the insertion of “should” in place of “shall”, “subsection” in the place of “proviso” and “such a court” in place of “such court.”^[129]

109. [109]
     Section 113(4) in its present form has been amended and reformatted as paragraph (a) to allow the addition of paragraph (b) which is as follows:

3. “(b)
   that, by reason of the expense likely to be incurred in the keeping or preservation of any exhibit tendered in evidence upon the examination of witnesses and to be, or proposed to be, tendered as an exhibit upon the appearance of the defendant for sentence, the defendant should be sentenced for the offence at some other place before a court of competent jurisdiction, the justices may order the defendant to be committed for sentence for the offence at such other place before such court.”

A difference with paragraph (a) is that the prior consent of the defendant, whether in writing or otherwise, is not required before the justices exercise their discretion under paragraph (b) to commit a person for sentence to a court at a place other than the place to which the person would otherwise be committed. The only change in terminology is that in s 113(4)(a) in accordance with modern drafting style “the defendant” has replaced “him” and “such court” has replaced “such a court.”^[130]

110. [110]
     Consequently, it is clear that the words appearing in the second limb of s 561(2), commencing “and against”, were inserted to complement the amendment of ss 108 and 113 of the JA. As such, they must have been intended to allow an ex officio indictment to be presented, other than by a crown law officer, in the additional situation to which what are now ss 108(2)(a) and s 113(4)(a), apply. It is not an extra requirement, condition or qualification to the situation in which an ex officio indictment can be presented, other than by a crown law officer under the first limb of this section.

111. [111]
     The consent referred to in the second limb of s 561(2), is not a consent to the presentation of an ex officio indictment for charges other than those on which a person has been committed for sentence, but is a consent to the person being committed for sentence to a court at a place other than the place to which the person would otherwise be committed.

112. [112]
     This interpretation is confirmed when consideration is given to the speech by the Attorney-General on 25 September 1956^[131] when initiating, in Committee, the Bill which enacted these amending provisions.

113. [113]
     In this speech the Attorney-General said:^[132]

“The purpose of this Bill is to enable charges of criminal offences which fall within the jurisdiction of the Supreme Court, and therefore cannot be dealt with summarily by a magistrate, to be dealt with more expeditiously. An accepted principle of criminal law is that an offender should be tried in the jurisdiction within which he is alleged to have committed the offence. The reason for this is plain.

…

To give effect to this requirement the Criminal Court sits periodically throughout the length and breadth of the State as well as at Brisbane, Townsville and Rockhampton, the three established centres of its jurisdiction.

…

A person may be committed for trial or sentence and may have to wait a period of six months because of no sittings of the Supreme Court at that place until that date. The prisoner may not be able to get bail.

…

It has been put to me, and I agree, that these delays should be obviated where the accused wishes his case to be dealt with expeditiously and he can be justly tried or sentenced at one of the other places where a criminal sittings of the Supreme Court is set down for an earlier date.  I wish to make it quite clear that the accused must be agreeable to a change in venue. This Bill amends the Criminal Code and the Justices Acts accordingly. Certain discretionary powers are given to magistrates. The magistrate has to be satisfied that the accused can be justly tried or sentenced at a criminal sittings of the Supreme Court set down for an earlier date. It is necessary to give magistrates discretion.

…

The amendment of the Justices Acts is required in order to enable the magistrate to commit for either trial or sentence, according to the plea, at the preliminary hearing. The difficulties that I have just spoken about would not arise if the accused pleaded guilty. Before the magistrate commits, the accused must consent in writing. Provision is made for written consent in order to obviate any later doubt as to what actually occurred. It is found from time to time that an accused person committed for sentence changes his plea when he comes before the Supreme Court.

The Criminal Code amendments in this Bill are in a sense consequential, in that jurisdiction of the Supreme Court is extended to cover the change of place of trial or sentence ordered by the magistrate. In many instances two or more offences arise out of the same facts. For example, stealing and receiving, but in such a case usually the magistrate commits for one offence only. In such a case the facts may better prove the alternative offence and presently the Criminal Code allows the accused to be indicted and tried for the alternative offence. The Bill covers this aspect by providing that the consent by the accused covers any offence arising from the facts. Without this provision it would, in effect, be impossible to enforce justice in cases where the place of trial is changed.

…”

(My emphasis)

114. [114]
     It is therefore clear that the purpose of the amendments to ss 108 and 113 of the JA was to enable indictable offences to be dealt with more expeditiously following committal by permitting an accused person to be tried in any jurisdiction with his or her consent, and subject to the committing magistrate’s discretion. Consequently, s 561 was amended to add what is now the second limb of s 561(2) to cover cases where with the accused person’s prior consent he or she has been committed for an offence in such circumstances, he or she may then be indicted for another offence arising from the facts which constituted the offence for which he or she was committed. As such the second limb was inserted for this purpose and has the effect identified in paragraph [110] of this judgment.

115. [115]
     There is nothing in the 2002 amendment of s 561(2) which requires any different interpretation.

116. [116]
     This interpretation is not inconsistent with the words “trial or sentence” in the second limb, in contrast to the word “trial” in the first limb of s 561(2). The use of each of those words reflects the legislative intention to encompass the effect of the amendments in 1956 to both s 108 (relating to committal for trial) and s 113 (relating to committal for sentence) of the JA in what is now the second limb of s 561(2). It was not intended to limit what is now the first limb of s 561(2), which as recognised in 1938 by R v Sutton^[133] applied where there was a committal for sentence on some other offence. This position was placed beyond doubt by the amendment of s 1 of the Code in 1975 to insert the current definition of “trial” to indicate “a proceeding wherein a person is sentenced.”

117. [117]
     Having regard to the approach in R v Sutton, the lack of express reference by Philp J in R v Webb^[134] to the use of ex officio indictments when a person is committed for sentence for an offence and the depositions disclose evidence of a different offence or other offences, when describing the purposes for which ex officio indictments were used in practice, can not be construed as excluding this use in such circumstances. I do not interpret the remarks of Philp J as intended to impose an exhaustive limitation on their use, but merely to describe the usual practice.^[135] His Honour may have contemplated that the reference to a person being committed for trial extended to a person being committed for sentence in accordance with R v Sutton; and in any event as submitted by Ms Bain, it may simply reflect the fact that committals for sentence are less common that committals for trial.

118. [118]
     In R v Foley^[136] it was held that the phrase “whether the accused person has been committed for trial or not” in s 561(1) means whether or not the person has been committed for trial on some other offence. I agree with Ms Bain’s submission that the interpretation must equally apply for those words where they appear in the first limb of s 561(2).

119. [119]
     As the reference to “committed for trial” extends to “committal for sentence”, s 561(2) applies whether or not the person has been committed for sentence on some other offence.

120. [120]
     The first limb of s 561(2) provides:

“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 an indictable offence within the jurisdiction of the court, whether the accused person has been committed for trial or not.

121. [121]
     Interpreting this in accordance with R v Foley with reference to a sentence, a Crown prosecutor can present an ex officio indictment against a person for an indictable offence within the court’s jurisdiction where the person has not been committed for sentence for that offence. The interpretation is in accordance with the court’s approach in R v Sutton, where as in the present case it was held that there was nothing to prevent the Crown prosecutor from indicting the defendant for a major offence when he had been committed for sentence on a minor offence arising out of the same set of facts, despite their having been no preliminary inquiry. As demonstrated, the amendments to s 561 of the Code and s 113 of the JA since that time do not alter this position.

122. [122]
     This is also similar to the first of the uses identified in R v Webb,^[137] if “committed for sentence” is substituted for “committed for trial”, because this is a case where the applicant has been committed for sentence for two offences and the depositions are said by the prosecution to disclose evidence of a different offence.

123. [123]
     Accordingly I conclude the second limb is not an extra requirement, condition or qualification to the first limb of s 561(2) which allows an ex officio indictment to be presented other than by a crown law officer; and that the first limb applies to the circumstances of this case to allow the Crown prosecutor to sign and present an indictment against the applicant for count 1 concerning the dangerous operation of a vehicle causing death and grievous bodily harm, when he was committed for sentence on the two charges under the TOMSA which constitute count 2 and which arise out of the same set of facts, despite there having been no specific preliminary inquiry into the charge which is the subject of count 1.

124. [124]
     This is particularly so in the present case where, as Ms Bain submits, the evidence has not changed from that presented at the committal.

125. [125]
     Further, as recognised by the Full Court in R v His Honour Judge Grant-Taylor and the Attorney General, ex parte Johnson^[138] the cases in which ex officio indictments can be presented include, where a person has not been committed for trial and denies committing any offence. It would be anomalous if a Crown p

126. [126]
     rosecutor could present an indictment against a person for an indictable offence where the person has been discharged at committal, but could not do so where a person has been committed for sentence on other offences based on the same set of facts.

127. [127]
     Therefore, count 1 of the indictment was not required to be presented by a crown law officer under s 561 of the Code and is valid.

128. [128]
     Conclusion and orders

For these reasons, the applications to stay and quash the indictment in respect of count 1 are dismissed.