DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   It has always been understood that the entry of a nolle prosequi was not a promise never to proceed in future against the accused.^[1]That might still be so. However, since being amended by the Criminal Law Amendment Act 1997, Code s. 590 has provided:

2. [2]
   Upon the accepted authority of the Court of Appeal’s decision in R vFoley [2003] 2 Qd R 88, s.561 (Ex officio indictments) does not support the presentation of an indictment charging an offence that has been the subject of committal proceedings.

3. [3]
   In this case, six months and six days after committal, the crown prosecutor entered a nolle prosequi on the indictment then before the court (presented within 6 months of committal) and the judge gave effect to that information according to s. 563, discharging the defendant from further proceedings upon that indictment. The prosecutor then presented another indictment charging the defendant with the same unlawful conduct but in amended form and adding a second co-accused. The primary question in this application is whether the presentation of the second indictment was precluded by s. 590.

The proceedings so far

4. [4]
   The applicant is charged, on an indictment (“the present indictment”) presented on 9 December 2011, with four counts of dishonesty. On counts 1 and 2 he is co-accused with Stanley Robert Jones and Steven Michael Vergotis. On counts 3 and 4 he is co-accused with Jones only. The charges span a period from June 1993 to August 2001. By application filed 24 July 2012, the applicant seeks an order that proceedings on the indictment be permanently stayed and, alternatively, other orders and rulings. By a second application dated 7 August 2012, the applicant seeks an order that the indictment be quashed or declared void. I have received submissions and heard argument with respect to all applications. These are my reasons for dismissing the second application.

5. [5]
   The charges arise out of allegedly fraudulent conduct of the applicant in positions he held as an employee. Broadly put, it is said he conducted a scheme whereby false orders were placed with suppliers who did not deliver goods in respect of the orders but presented invoices to the applicant’s employer, which invoices were paid and the proceeds distributed. Counts 1 and 3 concern conduct before 1 July 1997, when s. 408C was amended by the Criminal Law Amendment Act1997, and counts 2 and 4 concern conduct after that date. Each count comprehends numerous transactions.^[2]

6. [6]
   On 3 June 2011, the applicant was committed for trial on two charges. The transcript of the Magistrates Courtat Southportreads:

That between the 27^thday of June 1993 and the 13^thday of June 1997^[3]at Gold Coast in the State of Queenslandyou dishonestly applied property of another, namely, Conrad Jupiters Casino Limited to your own use. It is averred the said property was a sum of money of a value in excess of $5,000. It is further averred that you were an employee of Conrad Jupiters Casino Limited.

Further, the second charge is, that between the 1^stday of July 1997 and the 23^rdday of August 2001 at Gold Coast in the State of Queenslandyou dishonestly applied to your own use a sum of money belonging to Jupiters Casino Limited. It is averred that the said property was a sum of money to a value in excess of $5,000.^[4]

7. [7]
   On 24 November 2011, an indictment was presented in the District Court at Southport(“the first indictment”) charging the applicant and co-accused Vergotis with two counts of fraud.  The dates of the counts matched the charges committed by the magistrate. The wording of count two was different – it pleaded the applicant and Vergotis had “dishonestly obtained a sum of money” whereas the charge before the magistrate pleaded the applicant had “dishonestly applied” money to his own use. It is not said these were substantial variations.

8. [8]
   Jones, I am told, was committed for trial in 2009. A two count indictment was presented against him in December 2009.^[5]That indictment is not before me.

9. [9]
   On 7 December 2011, copies of the present indictment were sent by e-mail to the legal representatives of the three defendants.^[6]

10. [10]
    The indictment was presented on 9 December 2011 after the prosecutor entered a presented a nolle prosequi with respect to the first indictment and the presiding judge discharged the applicant from further proceedings on that indictment. The three defendants were legally represented. Counsel for the applicant raised “a preliminary issue”.^[7]His instructing solicitors had yet to receive the committal transcript. He said, “It’s not clear of the charges upon which my client was before the court”.^[8]Later, Counsel said the concern was as to the charges upon which the applicant was committed for trial: “They’re not clear yet because we don’t have the transcripts and then also whether or not the new indictment is being presented outside the six month period. But in any event, your honour, if that is an issue, that will be raised at a pretrial hearing.”^[9]

The arguments

11. [11]
    In support of the second application, the applicant argues that the present indictment, coming after the presentation of a nolle prosequi with respect to the first indictment and the discharge of the applicant, was ineffective because it was presented outside the period provided for in Code s. 590 and no extension of time had been sought or granted. The argument continues: what occurred was not the amendment of the first indictment - it was and remains incapable of amendment.^[10]And the indictment was not presented pursuant to Code s. 651(Ex officio indictments) - it could not have been because it charged offences which had been the subject of committal for trial.^[11]

12. [12]
    As to the last point, it was common ground that the two “committal charges” comprehended all of the applicant’s alleged unlawful conduct. This was possible because Codes. 568(3) or its predecessor, s. 568(1C), allowed the charging of a single count covering numerous transactions. The prosecution did not submit the present indictment was an ex officio indictment. In the result, this case does not raise the scope of the decision in Foley.

13. [13]
    The prosecution submits the presentation of the present indictment did no more than amend the charges already before the court to reflect the alleged dishonesty and changes to legislation including s. 568 of the Code, and join Jones who had been separately committed for trial. Counts 1 and 2 allege the fraudulent scheme was conducted by the applicant and Jones on the one hand and the supplier, Vergotis, on the other. Counts 3 and 4 concern the alleged arrangements between the applicant and Jones and three different suppliers.

14. [14]
    Mr Boe, who appeared with Ms Morreau for the applicant, submitted that the two counts on the first indictment must be understood as charging the applicant only in respect of the conduct committed in association with Vergotis. This followed, it was argued, from the charging of both the applicant and Vergotis in both counts. If that is correct, it follows that counts 3 and 4 in the present indictment, where Vergotis is not co-accused, must relate to conduct not charged in the first indictment. This submission requires the assumption that, whereas the two committal charges encompassed all of the applicant’s alleged unlawful conduct, the two counts on the first indictment did not, whether by oversight or design. That assumption is not easily made and is contrary to the assertions of Mr Finch, who appeared for the Crown. He argued the two counts on the first indictment comprehended all of the applicant’s alleged unlawful conduct and reflected the two charges on which he was committed for trial. Mr Finch repeatedly told the court the present indictment was a simply redrawing of the earlier two counts. I proceed on that basis.

15. [15]
    The Crown relies on R v Ford; ex parte A-G (Qld) [2006] 440. In that case, the accused was committed for trial on 6 charges in June 2001. An indictment charging him with those offences was presented on 10 December 2001. Six other charges failed at committal because the complainant did not give sufficient evidence to support them.  On 2 May 2006, an indictment was presented containing the original six counts and another six, being the charges that had been dismissed at the committal hearing. The District Court judge declined to receive the indictment. The Attorney-General referred two questions to the Court of Appeal, pursuant to s. 668A of the Criminal Code.  Keane JA, with whom Jerrard JA and Jones J agreed, answered them, in effect, as follows:

16. [16]
    As to the first question, Keane JA observed that s. 590 did not expressly prohibit the course taken by the Crown – s. 590 “did not address at all the subject matter of the inclusion of counts in an indictment”.^[12]And s.590 did not affect the authority conferred by s.561 to present an ex officio indictment. The section was expressed to be subject to s. 561. Section 590(4), which prescribed the consequences of non-presentation within six months after the committal for trial said nothing about indictments presented ex officio and the consequences prescribed in s. 590(4) did not prevent the Crown from bringing further proceedings.

17. [17]
    Keane J. referred, with respect to the last matter, to Mackenzie J’s reasons in Re Jenkin[1994] 1 Qd R 268. Of course, when Re Jenkinwas decided s. 590 did not require the presentation of an indictment within 6 months after committal for trial or an extension of time to present the indictment outside that time.^[13]But if, which is arguable, s.590 in its present form precludes the presentation of any (including further) indictment after six months from committal without an extension of time, the court in Re Jenkin did not think so. Keane JA rejected such an argument as being inconsistent with the express provision in s. 590(4) in respect of the consequences of non-compliance with s. 590(1).^[14]

18. [18]
    Keane JA concluded that for the six counts on which Ford had been committed for trial,

“the Crown does not rely on s. 561. Those six counts charge the respondent with offences different from the six counts sought to be charged by ex officio. The indictment in respect of the former six counts had been presented to the District Court on 10 December 2001. That occurred pursuant to s. 560 of the Criminal Code.”^[15]

19. [19]
    Jerrard JA said, at [1],

“This matter raises no deeper question than the procedure by which an ex-officio count or counts is/are joined to a count on which there has been a committal for trial, in circumstances where those counts are properly joinable. Separate trials on the ex-officio counts would be an unnecessary waste of money in those cases, because the evidence on all counts would be admissible on the trial relating to each variety. One obvious method of joinder is the presentation of an indictment which contains both the count or counts on which there has been a committal, and the count or counts which are ex-officio. Section 590 says nothing about that procedure and s. 590 … expressly does not limit the power given by s 561 to present an ex-officio indictment.”

Consideration

20. [20]
    I am driven to the conclusion that the Court in Ford, expressly by its answer to question 1 and impliedly by its untroubled acceptance of the procedure, endorsed a procedure whereby a new indictment was simply presented, 4½ years after the original indictment, without an application to amend the original. Insofar as the procedure effected an amendment to the original indictment, it was by the addition of ex-officio counts, the prosecution of which was authorised by s. 561.

21. [21]
    One difference between the present case and what occurred in Fordis that the original indictment was still on foot when the new indictment was presented.^[16]But as I understand the reasoning in Ford, this would not change the result. Essentially, it seems the Court viewed what occurred as a process of joinder and/or amendment. Perhaps the crucial fact – common to Ford and the present case – was that an indictment had been presented in accordance with s. 560. To that extent, the purpose of that section had been achieved. So, the remaining issue in Fordwas whether there was power to proceed in respect of the six new charges. There was because they were ex officio charges. In the present case although the allegations are set out in four counts instead of two, the case the applicant must meet is unchanged. That is, to the extent that the present indictment represents an amendment of the first indictment, the change is not substantial.

22. [22]
    Adopting the approach taken in Ford, I think the task is to examine what really occurred on 9 December 2011. That was, on notice to the defendants that a new indictment would be presented in place of the current ones – which would effect the joinder of all accused, the correction of certain text and the re-formatting of the charges from two to four in a comprehensible way - the change was made without objection but with the reservation of the applicant’s position. What occurred was, in effect, an amendment of the first indictment. The present indictment should be understood as having been received by the court subject to the resolution of any argument as raised by the applicant’s counsel. Once it is understood the present indictment does not represent the preferment of more charges the first concern raised at that hearing by Counsel, so far as I understand it, is eliminated.

23. [23]
    So understood, that process was not precluded by s. 590 of the Code. Certainly I cannot accept that the mere fact that the prosecutor discontinued the first indictment before presenting the present indictment should determine the outcome of the application. Such technicality has no merit in the circumstances of this case. And there is often good reason to avoid the co-existence of indictments bearing the same charges.

24. [24]
    It is true that no formal application was made to amend the first indictment and no order of the court was made. Practitioners must be reminded of the requirements of s. 572 of the Code. It is, at least, unfortunate that so much time and effort has been spent on the analysis of the process undertaken in this case. But if the proper understanding of the process that occurred on 9 December 2011 was that the indictment was amended subject to the resolution of issues reserved by the applicant’s counsel, then this application is the determination of those issues.

25. [25]
    The second application, for orders that the indictment be quashed or declared unlawful or void, is dismissed.