Dudarec v The Queen[2013] QDC 166

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This application is for:

“An order pursuant to s 694(c) of the Criminal Code 1899 (Qld) the Crown pay the costs of the accused’s defence fixed in the sum of $6,743.70”.

The Circumstances

2. [2]
   It is, as far as can reasonably be ascertained, an unprecedented application in Queensland. As was confirmed in R v His Honour Judge Kimmins ex parte Attorney-General,^[1] the general rule in criminal cases is that the Crown neither pays nor receives costs.^[2]Although the Court of Appeal was not prepared to endorse resort to civil procedural rules or the Supreme Court Act 1867-1973 or the District Courts Act 1967-1976, as effecting any abrogation of the prerogative right of the Crown not to pay costs (by express words or any necessary implication), it was observed that:

“In Queensland up until the enactment of the Criminal Code in 1899 there was no power in Queensland to order costs for or against the Crown in criminal cases. The Criminal Code did not alter the position in anything other than special circumstances. There is provision in the Criminal Code for the payment of costs in certain isolated instances (see for example ss 660, 661, 694) …”^[3]

However, the position remains that there appears to be no precedented instance of any such attempt to engage s 694.

3. [3]
   Although and if it were to become necessary to consider the exercise of the discretion sought by the applicant, there would be need to consider the circumstances in greater detail, for present purposes it suffices to note that this application is made with reference to the following essential circumstances:

1. (a)
   Against the background of a dispute relating to the ownership or at least the right to possession of a neo-mastiff pup, the applicant was, on 22 August 2012 at the Beaudesert Magistrates Court, committed for trial to the District Court at Brisbane in respect of a charge described as:

“Robbery with actual violence armed/in company/wounded/used personal violence.”

2. (b)
   On 23 January 2013 an indictment was presented in the District Court at Brisbane charging the applicant with the following offences:

“Count 1: That on the 14^th day of January 2012 at Morayfield in the state of Queensland, Michael Dudarec robbed Ruby Elisabeth Thornton.

And  Michael Dudarec was armed with an offensive weapon, namely an electrical antipersonnel device.

Count 2: That on the 14^th day of January 2012 at Morayfield in the state of Queensland, Michael Dudarec attempted to steal a dog, the property of Lisa Hemming.”^[4]

3. (c)
   The indictment, as presented, is endorsed in terms that: “Sarah Lorraine Dennis, informs the Court” and Ms Dennis has signed the indictment on 16 January 2013 as a “Crown Prosecutor.”

4. (d)
   The trial was listed as a No. 2 trial in the week commencing 1 April 2013. However, on 3 April 2013 a “DPP presenter” provided to the Court, in writing informing the Court that the Crown would not further proceed upon the indictment.^[5]That written information is introduced by the words “I, Samuel James Bain, being an officer duly appointed by the Governor in Council to present indictments in this honourable Court” and was signed by Mr Bain, on 2 April 2013 and as a “Crown Prosecutor”.

5. (e)
   It is acknowledged that in indicating to the applicant’s legal representatives, the intention to enter the Nolle Prosequi, the Crown Prosecutor indicated an intention to recommend or at least advise that police instead charge the accused with summary offences of common assault and going armed so as to cause fear, obviously with a view to this matter being further dealt with summarily.^[6]

4. [4]
   Accordingly and as it is understood, the gravamen of the charge in Count 1 on the indictment and in respect of which the applicant had been committed for trial, was an allegation that in the course of a struggle, when the applicant had confronted the complainant over her retention of the pup, the complainant’s car keys had been taken, in circumstances where it was alleged that the applicant had and purported to operate an implement which the complainant thought was “a taser”. Further, Count 2 as it is understood, was based on an allegation that at the same time and place, the applicant had tried to grab the pup from the back seat of the complainant’s car, before the complainant took the pup and ran away towards some houses, leaving her baby and mother at the car.             

5. [5]
   The total amount of costs that are sought consist of:

1. (a)
   A sum of $4060.00 incurred in respect of the proceedings in the Beaudesert Magistrates Court and up to and including the proceedings on 22 August 2012, when the applicant was committed for trial on the charge which became Count 1 on the indictment presented on 23 January 2013; and

2. (b)
   A sum of $2683.70 paid by Legal Aid Queensland to the applicant’s legal representatives in respect of the proceedings on the indictment  presented in this Court.^[7]

The basis of the application

6. [6]
   As has been noted the application has been brought pursuant to s 694 of the Criminal Code, which provides:

“694 Costs of defence

In any of the following cases, that is to say—

1. (a)
   if an application for leave to present an information against a person (the accused person) ends without the application being granted;

2. (b)
   if the accused person pleads to the information, and is not brought to trial within a year after filing the person’s plea;

3. (c)
   if a Crown Law Officer informs the court that the Crown Law Officer will not further proceed on the information;

4. (d)
   if the accused person is acquitted upon trial;

the court, or the judge before whom the trial (if any) is had, may award costs to the accused person.”

7. [7]
   Although that provision is found in Chapter 70 of the Code, which is headed “Informations by Private Persons for Indictable Offences – Ex Officio Indictments” and is expressed in reference to “an information” which, by virtue of s 686 of the Code and the first section in Chapter 70, may only be presented “by leave of the Supreme Court” charging “any other person for any indictable offence, alleged to have been committed by such other person”, the applicant originally pointed to s 695 of the Code, on the basis that it is a provision that is found as the final section in Chapter 70 and contended that it picks up and applies (with one stated exception) the provisions of Chapter 70 to ex officio indictments, including the power to award costs.^[8]

8. [8]
   Section 695 is in the following terms:

“695 Practice to be applied on ex officio indictment

When an indictment is presented in the Supreme Court by a Crown Law Officer against any person who has not been committed for trial for the offence charged in the indictment, the Crown may proceed thereon in the manner prescribed in this chapter with respect to informations filed by private prosecutors, except that no security shall be required.”

9. [9]
   The respondent’s position is that the application is not competent and that no question of the exercise of discretion to award costs arises. Accordingly the issues that arise upon this application and before any consideration of an exercise of discretion, go to whether or not there is any power to award the costs that are sought, in these circumstances. More particularly, some issues that necessarily arise are as to whether:

1. The indictment presented here is an ex officio indictment within the meaning of s 695 or, more particularly, an indictment “against any person who has not been committed for trial for the offence charged in the indictment”;

2. The express reference to the Supreme Court in s 695, is an impediment to the application;

3. The indictment was here presented by a “Crown Law officer” and whether it was a “Crown Law officer” that informed the Court of the Nolle Prosequi, within the meanings respectively of s 695 and 694(c) of the Code; and

4. S 694 is otherwise applicable to these circumstances.

10. [10]
    On the application, reference was made to R v Jackson,^[9] as the only known decision touching on the operation of s 694 and s 695 the Code, or more particularly, the analogue provisions in the Western Australian Criminal Code.^[10]Whilst the actual decision in that case is of little assistance here, because it critically turned upon the interpretation of amendments made to the originally enacted provisions, in 1902 and 1954, which amendments are not replicated in the Queensland provisions, two things can be noted as to observations made in the judgment of Virtue J:

1. (a)
   First, the application for costs was noted as being unusual, in the context of the ordinary rule that the crown neither receives nor pays costs and therefore requiring identification of some statutory exception to that ordinary position;^[11] and

2. (b)
   Secondly, Virtue J made the following observations as to the effect of the Western Australian equivalent to s 695 of the Criminal Code (although he refers to it as s 696):

“There is little doubt that as originally drafted in 1902 s.729 did impose a liability for costs on the Crown in the case of ex officio indictments. The section then read: ‘when an indictment is presented in any Court of criminal jurisdiction by the Attorney General against any person who has not been committed for trial for the offence charged in the indictment, the court may proceed thereon in the manner prescribed in this chapter with respect to informations filed by private prosecutors except that no security shall be required.’  These words are identical with the words of s 696 of the Queensland Criminal Code as they then were and as they still are and in applying the previous provisions of the chapter relating to informations by private persons to ex officio indictments the section clearly includes liability for costs.

However, within a year of the original enactment of the Code, the liability of the Crown for costs had been abrogated by the passing of the Criminal Code Amendment Act 1902 in schedule to which s 729 (or s.696 as it was then numbered) was amended by adding the words ‘and the last proceeding section shall not apply’. This specific exemption of the Crown from liability for costs under s.728 remained unchanged until the 1954 amendment. In the meantime, the only amendment to s 729 had been the addition of a second paragraph designed to overcome the difficulties arising from the application of the sections dealing with private informations, which only contemplated proceedings being issued in the Supreme Court, to s 729 which included ex officio indictments filed in Courts of Criminal jurisdiction other than the Supreme Court.”

An Ex officio indictment?

11. [11]
    Accordingly, the underlying premise of the present application is that the indictment that was presented was an ex officio indictment and such within the meaning of s 695 of the Code.

12. [12]
    In accordance with contemporary practice, it may occasion surprise to some that the indictment presented in this case may be regarded as an ex officio indictment. That may explain why it was not specifically endorsed as such.^[12]However and after initially not conceding this point, the respondent in its further written submissions, expressly conceded that the indictment presented in this case, was an ex officio indictment, within the meaning of s 561(2) of the Code. It is convenient to here set out the existing provisions of s 560, s 561,s 562 and s 563 of the Code:

“560 Presenting indictments

3. (1)
   When a person charged with an indictable offence has been committed for trial and it is intended to put the person on trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.

3. (2)
   The indictment is to be signed and presented to the court by a Crown Law Officer, a Crown prosecutor or some other person appointed in that behalf by the Governor in Council.

3. (3)
   If a person has been committed for trial for an indictable offence that may be tried in the District Court, a Crown Law Officer or a Crown prosecutor may present the indictment to either the Supreme Court or District Court.

3. (4)
   In deciding the court to which the indictment is to be presented, the Crown Law Officer or Crown prosecutor must have regard to—

3. (a)
   the complexity of the case; and

3. (b)
   the seriousness of the alleged offence; and

3. (c)
   any particular importance attaching to the case; and

3. (d)
   any other relevant consideration.

3. (5)
   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.

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.

562 Arrest of person charged in ex officio indictment

When an indictment has been presented against a person who is not in custody, and has not been committed for trial or held to bail to attend to be tried upon the charge set forth in the indictment, or who does not appear to be tried upon the charge set forth in the indictment, a judge of the court in which the indictment is presented may issue a warrant under the judge’s hand to arrest the accused person and bring the person before a justice of the peace; and the justice before whom the person is brought may commit the person to prison until the person can be tried on the indictment, or may, in a proper case, grant bail.

563 Nolle prosequi

3. (1)
   A Crown Law Officer may inform any court, by writing under the officer’s hand, that the Crown will not further proceed upon any indictment, or in relation to any charge contained in any indictment, then pending in the court.

3. (2)
   A Crown prosecutor or a person appointed by the Governor in Council to present indictments in any court of criminal jurisdiction may inform that court, by signed writing, that the Crown will not further proceed upon any indictment, or in relation to any charge contained in any indictment, then pending in that court.

3. (3)
   When such information is given to the court the accused person is to be discharged from any further proceedings upon that indictment or charge.”

13. [13]
    The prosecution concession was made in express reference to:

1. (a)
   The following passage taken from the judgment of Philp J in R v Webb:^[13]

“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;” and

2. (b)
   The following passage taken from the judgment of the court in R v Foley:^[14]

“The purpose of s 561 appears to have been to permit the presentation of an indictment for an indictable offence against a person notwithstanding that the 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 that person has been committed for trial on some other offence; to rebut an argument that, once a person has been committed for trial of an offence, he may be indicted only for that offence.”

14. [14]
    Strictly, the observations in each of these cases was obiter dicta and neither case was directly concerned with the precise status of an indictment, such as the one in this case where there has been committal for trial on at least one, but not all, of the charges contained in the indictment.

15. [15]
    The fact that s 560 and s 561 of the Code are expressed in reference to a singular charge or offence, is explained by the primary rules stated in s 567(1) that “[e]xcept as otherwise expressly provided, an indictment must charge 1 offence and not 2 or more offences”. However, the following subsections in s 567, proceed to provide for circumstances in which several charges or counts may be joined and included in an indictment. Further and despite an “indictment” being defined in s 1 of the Code as:

“Indictment means a written charge preferred against an accused person in order to the person’s trial before some Court other than Justices exercising summary jurisdiction”;

it is clear that the indictment referred to in s 560(1) is intended to be the document containing the permissibly joined charges, rather than any individual charge.

16. [16]
    Further, it is apparent that the application of both s 560 and s 561 is to the point at which an indictment is presented to a Court, so that it is the characterisation of the indictment at that point which is the subject of those sections. Accordingly, the status of an indictment presented in accordance with s 560 would not be affected by the subsequent exercise of the power under s 572(1) of the Code to amend by adding a count to the indictment, whether or not there had been committal for trial in respect of that charge.

17. [17]
    Obviously the concluding words to 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”

may have been influential in reaching the conclusions expressed in R v Webb and R v Foley. But it should be noted that whilst those words were not included in s 561, as originally enacted^[15], they were part of the second paragraph of this section, when Webb was decided. The words were added by s 5 of the Criminal Code and Justices Amendment Act of 1956^[16], which act also effected:

1. (a)
   An amendment of s 557 of the Code to insert what now appears as s 557(9) and allowing and accused person to consent to being tried in any jurisdiction of a relevant Court; and

2. (b)
   An amendment of both s 108 and s 113 of the Justices Act 1886 by adding to each the following words:

“Provided 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 to take his trial as a foresaid, the Justices are of the opinion that it would be just that the trial of the defendant should be held 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 take his trial for the offence at such other place before such Court.” 

18. [18]
    Nevertheless, it must be recognised that the observations made in Webb by Philp J were made in circumstances of intent to both summarise some historical context and also, then existing practices in respect of ex officio indictments and that, as observed by Fryberg J in R v Boulle,^[17] the passage taken from Foley: “While technically containing obiter dicta, is part of a very deliberate excursion by a unanimous Court of Appeal to consider the question”. Further, and after some independent review of materials relating to the historical context of ex officio indictments, Fryberg J also concluded:^[18]

“Despite the distaste with which ex officio indictments have been viewed, a number of situations have been identified where their use is not regarded as unjust. One is “when a man has been committed for trial or an offence and the depositions disclose evidence of a different offence or of other offences”. A second is where an accused person wishes to demonstrate his willingness to cooperate in the administration of justice by pleading guilty without a committal proceeding. A third is where there have been committal proceedings, the magistrate has failed or refused to commit and the prosecutor takes the view that there is sufficient evidence to put the accused upon his trial.”

19. [19]
    In the context of the observations that have been made in the cases referred to, the respondent’s concession is both understandable and well made and it follows from these conclusions, that s 560 of the Code can only apply to situations where the indictment which is presented contains only charges for which the accused has been committed for trial^[19], rather than an indictment upon which the accused has been committed in respect of any charges contained in it and that, otherwise, indictments are presented under s 561.

20. [20]
    It is likely that there are a significant number of indictments that are regularly presented in the Supreme and District Courts of Queensland that are, like the one here, therefore technically ex officio indictments presented under s 561, notwithstanding that this categorisation is not recognised, as it should be, by the endorsement required by Criminal Practice Rule 20 (2).

21. [21]
    However the precise question is as to whether such an indictment as was presented in this case, is one within the meaning of the following words in s 695 of the Code:

“… an indictment… presented… against any person who has not been committed for trial for the offence charged in the indictment”.

For instance and by application of s 32C of the Acts Interpretation Act 1954, “the offence” may be read, in this situation, as “the offences” and the question is whether this section is intended to operate when any of the charged offences has not been the subject of committal or only when there has been no committal in respect of all the charges.

22. [22]
    Although and considered in isolation, a question might arise as to whether the reference in s 695 to the presentation of an indictment “against any person who has not been committed for trial for the offence charged in the indictment” refers to circumstances where multiple offences are charged in a presentment, to a person who has not been committed for trial in respect of all, as apposed to any, of these charges, having regard to the obvious connections of these sections to the power to present ex officio indictments in s 651 of the Code, there should be no departure from the meaning given to that section in R v Foley and accordingly, s 695 is capable of applying to an ex officio indictment such as the present and where the absence of committal is only in respect of some, but not all, of the charges joined in the indictment.

Does Chapter 70 apply in the District Court?

23. [23]
    An obvious potential impediment to this application is that s 695 is expressed to apply to indictments presented in the Supreme Court and the respondent points to this as indicating that this application is not competent.

24. [24]
    In the applicant’s initial written submissions the only reference to s 695 was as follows:

“4. Section 695 of the Criminal Code applies the whole of Chapter 70 of the Criminal Code, other than the power to order security for costs, to a proceeding commenced by ex officio indictment. References to an ‘information’ must therefore be read as a reference to an ex officio indictment.”

25. [25]
    On the hearing of the application and when confronted with the respondent’s express reliance upon the express reference only to the Supreme Court in s 695, the applicant’s position was that such a restriction of the application of s 695 is illogical and inconsistent with the generality of the headings to this section and Chapter 70 of the Code. However in the applicant’s further written submissions this position was supplemented as follows (after setting out the existing terms of s 694 of the Code):

“4. It is not clear, if that Chapter was not intended to apply to the Crown, why it would contain a provision for a Crown Law Officer to inform the Court that they would not proceed further on an indictment unless that sub section was intended to apply to a prosecution being conducted by the Crown without the accused having been committed so that in those circumstances the Crown was to be characterised as a private person.

5. Section 561 of the Code as originally enacted, referred to ‘Ex Officio Informations’. There was therefore a link between the filing of an ex-officio information by the Crown and the circumstance where a Crown Law Officer later informed the Court that an information would not be proceeded with. The heading of s 561 was amended in 2002 by s 300E of the Criminal Proceeds Confiscation Act 2002 but that amendment was not in the Bill and the reasons for the amendment were not adverted to in Parliament.

6. The wording in s 694(c) of the Code has not changed.

7. It is submitted that the legislature intended that there would be a consequence for filing an ex officio information (now indictment) and that consequence was found in s 694(c) so that if the Crown commenced a private prosecution and then discontinued it, the Crown risked an order for costs being made against it.

8. The respondent contends that the applicant needs to fall within s 695 of the Code before a costs order can be made under Chapter 70. The Applicant does not agree. Section 695 was also found in the Code as enacted and in that context its role can be seen to be that when the Attorney General or the Director of Public Prosecutions see fit to file an ex-officio indictment in the Supreme Court an accused has the other benefits of Chapter 70 but he or she may not be given security for costs. That limitation in relation to security for costs does not apply if the ex-officio indictment is filed in another court or if it is filed by someone other than a Crown Law Officer.

9. It is submitted that the whole of Chapter 70 was intended by the legislature to apply to public prosecutions upon ex officio information and on that basis the applicant does not rely upon s 695 of the Code to have a costs order made in his favour.”

26. [26]
    I am unable to accept any of these submissions.

27. [27]
    As originally enacted, s 560 only contained what now appears as subsections (1) and (2). By the Criminal Law Amendment Act 1997^[20], the present heading “Presenting indictments” was substituted for the heading “Nature of indictment” and the provisions which are subsections (3) and (4) were added.^[21]As originally enacted, s 560 only referred to the signing and presentation of indictments by a “Crown Law Officer or some person appointed in that behalf by the Governor in Council”. However and as subsections (3) and (4) were enacted, they referred to “the director of public prosecutions or a Crown prosecutor”.

28. [28]
    Whilst it must be recognised that the headings to parts, divisions and sections of an Act are to be regarded as part of an Act^[22] and available for assistance interpreting the provisions to which they relate, it is recognised that such headings must give way where the words of a provision or section are clear and unambiguous.^[23]

29. [29]
    Further it can be noted that the amendments to the headings to ss 561 and 695 were made to the original Bill presented to Parliament and which became the Criminal Proceeds Confiscation Act, No 68 of 2002, in the committee stage. Amendments were made to the following relevant effects:

1. (a)
   A definition of “DPP Presenter” was added in s 1 and the current s 559A was inserted;

2. (b)
   The words “a Crown Prosecutor” were added in s 560(2);

3. (c)
   The reference to “Crown Law Officer” was substituted for “Director of Public Prosecutions” in both s 560(3) and (4);

4. (d)
   Section 560(5) was added;

5. (e)
   The heading to each of s 561, s 562 and s 695 were amended by replacing the word “indictments” and “indictment” for “informations” and “information”, respectively;

6. (f)
   Section 561(1) had the words “signed and” added;

7. (g)
   In s 561(2) the words “A Crown Prosecutor or a person appointed by the Governor in Counsel to sign and present indictments in any Court of criminal jurisdiction may sign and” were substituted for the words “An Officer appointed by the Governor in Counsel to present indictments in any Court of criminal jurisdiction may”;

8. (h)
   Section 561(3) was added; and

1. (i)
   Section 563(2) was amended by inserting the words “A Crown Prosecutor or a person” for the words “An Officer”.^[24]

30. [30]
    The explanatory notes for those amendments indicate that they were prompted in order to recognise that the persons entitled to sign indictments in Queensland are:

“a Crown Law officer (that is the Attorney-General and the DPP), people holding a commission to prosecute from the Governor in Council and people appointed as Crown Prosecutors” (it was further noted that under s 24 of the DPP Act 1984, a person appointed as a Crown Prosecutor is taken to be appointed by the Governor in Council);

and what was then correctly anticipated to be the effect of the then undelivered decision in R v Foley, as to the invalidity, under the previous provisions, of the presentation of indictments to a court by a person other than someone authorised to sign indictments.

31. [31]
    As far as further specific explanation for the amendments then made, the explanatory notes state as follows:

“Amendment 6 inserts a new Part 3A into the Bill.

The new Part 3A amends the Criminal Code by providing for the presentation of indictments by a 'DPP presenter'.

A 'DPP presenter' is defined in the new section 559A to mean 'a person, other than a Crown Prosecutor, appointed or employed in, or engaged by, the Office of the Director of Public Prosecutions who is authorised in writing by the Director of Public Prosecutions to present an indictment for the director'.

New clause 300D provides for the amendment of section 560 (Presenting indictments). Section 560 provides for the presentation of indictments after committal. There are two changes in section 560. Firstly, the language of the section has been amended to clearly state that Crown Prosecutors may sign and present indictments.

Section 560 (3) provides that an indictment may be signed and presented in the Supreme or District Court by the Director of Public Prosecutions and Crown Prosecutors. The Attorney-General has also a specific power to present indictments (section 7(1)(a) of the Attorney-General Act 1999). Section 560(3) and (4) have been amended to clarify that both the Attorney-General and the Director of Public Prosecutions have the power to present indictments in both the Supreme and District Courts. Previously, section 560(3) and (4) only referred to the Director of Public Prosecutions.

A new sub-section (5) will allow a DPP presenter to present indictments signed in accordance with 560 (1) and (2). However, this person will have no power to initiate a prosecution by signing an indictment.

New clause 300E amends section 561 (Ex officio informations).

In the heading to section 561 the term 'information' is changed to 'indictment'. The original difference between the terms was that an indictment resulted from a proceeding from a grand jury and informations were initiated by law officers of the Crown or by private prosecutions with the leave of the court. (R v Slator (1881) 8 QBD 267)

The other variation on the term was a presentment that was based on the situation where a grand jury returns a document making formal accusation of a crime not on the basis of evidence found by a grand jury to be credible (an indictment) but upon the grand jury's personal knowledge of the facts (a presentment) (see R v Nicola 79 ALR 469).

The distinction is no longer valid in Queensland especially since the heading of 561 (information) is not reflected in the body of the section (indictment). The High Court noted in 1938 that the term indictment in the case of Australia had always been used in the wider sense (R v Federal Court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556).

Section 561 provides the power for Crown Law Officers (the Attorney-General and the Director of Public Prosecutions) to present indictments where the accused person may not have been committed for trial. The language in section 561(2) has been amended to conform to the terms used in section 560. A new sub-section (3) provides for authorised DPP presenters to present indictments signed by a person under section 561(1) and (2).

New clause 300F amends section 562 (Arrest of person charged in ex-officio information) to insert 'indictment' in the heading.

New clause 300G amends section 563 (Nolle prosequi) to ensure the terms used conform to section 560 and 561.

New clause 300H amends section 695 (Practice to be applied on ex-officio information) to insert 'indictment' in the heading.”^[25]

32. [32]
    The historical context referred to in the explanatory notes also provides some assistance in understanding the effect of s 694 of the Code. Although it appears curious that there is no more explicit reference to the power of a Crown Law Officer to enter a nolle prosequi in respect of a private information, as opposed to the apparent assumption of such a power in s 694(c), as Holmes J noted in Gilbert v Volkers^[26], in Gouldham v Sharrett^[27], the Full Court of the Supreme Court of Western Australia regarded the equivalent provision in the Western Australian Criminal Code “as indicating that the crown retained control of the proceedings”.

33. [33]
    In this regard it can be noted that pursuant to s 686(2) and (3) any private information presented by leave of the Supreme Court is to be signed “by the person on whose application the leave is granted, or some other person appointed by the court in that behalf” and that person “is called the prosecutor”. Further the information “is to be entitled “The Queen on the prosecution of the [named prosecutor]”^[28]. However, it is the private prosecutor who is required to give security, before the information is presented:

“in such amount and in such manner as the court on giving leave to present the information may direct, that he will prosecute the information without delay, and will pay to the accused person such costs incurred by him in respect of his defence to the charge as the court may order him to pay.”^[29]

34. [34]
    In the judgment in Gouldham v Sharrett^[30] there is some considerable examination of the historical foundations of the procedure of criminal prosecutions and particularly private prosecutions, in the laws of England and as were adopted and adapted in the colony of Western Australia, prior to the enactment of the Western Australia Criminal Code in 1902. That examination is also of historical significance to the Queensland situation.^[31]In the context of also noting the replacement of the role of the grand jury, in Western Australia, by the empowerment of the Attorney-General to present informations or indictments to a court and thereafter the inability of any private individual to access the grand jury, in order to achieve such an outcome^[32], it was specifically noted that:

“Russell on Crimes (1923), vol. 2 at p.1778, has the following passage:

‘At common law any person may take proceedings by way of indictment in respect of a crime, subject to the right of the Crown to intervene and take over the prosecution or stay it by entering a nolle prosequi.’

It would appear that the Prosecutor could appear in court without counsel but have no right to address the jury:  R. v. Brice (1819) 2 B. & Ald. 606; 106 E.R. 48; but it seems that he could engage his own counsel to conduct the prosecution:  R. v. Gurney (1869), 11 Cox C.C. 414, at pp.422 and 423. But the right of the Attorney-General to enter a nolle prosequi at any time before verdict was clear:  R. v. Allen (1862), 1 B. & S. 850; 121 E.R. 929; R. v. Controller-General of Patents, (1899) 1 Q.B. 909:  see per A.L. Smith, J. at p.914.”^[33]

35. [35]
    In coming to the conclusion that the Western Australian equivalent of s 694(c) “clearly indicates that the Crown retains control over [private prosecutions]”, Wolff CJ also noted:

1. (a)
   earlier authority for the proposition that the conclusion of a private prosecution by nolle prosequi, could only occur by the leave and intervention of the Attorney-General; and

2. (b)
   that in Cook v Corrie^[34] and in circumstances where leave was sought in respect of a private prosecution, in circumstances where the Attorney-General had already refused to present a bill after committal, it was decided that the recognised right of the Attorney-General to intervene and enter a nolle prosequi, should such leave be granted, placed the court in such an ignominious position as to warrant refusal of the application.

36. [36]
    Although, Wolff CJ also went on to observe:

“But while conceding the force of the court’s reasons as a practical consideration in the exercise of its discretion I would not go so far as to say that there is any definite rule that because the Attorney-General has refused to file an indictment this court will never give leave to a private prosecutor, but such a refusal is a matter of great weight in deciding not to grant leave. …

However, as was pointed out by Parker, C.J., in Cook’s Case the Attorney-General may intervene and inform the court that he will not proceed further on the indictment. When the section says the Attorney-General will not proceed it seems to indicate that the Crown will not lend its authority anymore to the prosecution and that by withdrawing it the prosecution will stop. That would, as Parker, C.J., pointed out, create an invidious position …”^[35]

37. [37]
    Otherwise, it was also noted by Wolff CJ that a private individual may make a complaint before Justices or a Magistrate and seek an order of committal of another person, as remains the case under the Justices Act 1887 in Queensland. However, such an outcome only enlivens the role of the DPP (who, together with the Attorney-General and other persons authorised to sign indictments, now effectively performs the role of the grand jury) in deciding whether or not to present a bill and thereby institute a prosecution upon indictment, in which case the prosecution is brought in the name of and on behalf of the Crown or the State of Queensland.

38. [38]
    It is also necessary to consider s 694 in the wider context of the Code as a whole. With one possible exception, the limited instances where costs orders may otherwise be made in relation to criminal proceedings are for such orders to be made only for or against particular individuals. For instance, the more recently introduced provisions, as provided in s 590AAA (4)(b), section 644B(3) and 644C(4), respectively allow for orders to be made in instances where costs of an adjournment or proceedings are incurred through the unreasonable, unjustified or deliberate non-compliance of a person with a direction to such a person to make disclosure under divisions three or four of chapter 62 of the Code and instances where costs are wasted by or resulting from the non-compliance, by an individual or corporation, with a subpoena or court order requiring attendance to give evidence or to produce a document or thing to a court or a person having authority to take evidence for a court.

39. [39]
    Notwithstanding that s 660 is in chapter 65 of the Code, which chapter is simply headed “costs”, it provides only a power to order that an offender convicted on indictment of any indictable offence relating to the person of any person;

660  Costs of prosecution in certain cases

“(1)  When a person is convicted on indictment of any indictable offence relating to the person of any person, the court, on the application of the person aggrieved by the offence, may, in addition to any sentence which is passed upon the offender, adjudge the offender to pay to the person aggrieved the person’s costs of prosecution, together with a sum by way of compensation for any loss of time suffered by the person by reason of the offence of which the offender is convicted.

3. (2)
   An order for the payment of such costs, or of any sum so awarded by way of compensation, may be enforced in the same manner as a judgment of the court given in an action.

3. (3)
   If any money was found on the person of the offender on the offender’s arrest, the court may order it to be applied towards the payment of any money so ordered to be paid by the offender.

3. (4)
   When an order is made under the provisions of this section for the payment of money by way of compensation to an aggrieved person, the offender is not liable to any civil proceedings for the same cause at the suit of that person.”

However, the power is limited to instances where application is made by the person agreed and the “costs of prosecution” are defined in s 662(2) as:

“(2) In this section—

costs of prosecution includes costs incurred by the person aggrieved in order to the committal of the offender, and costs incurred by the person with the consent of the Crown for the purposes of the trial.”

40. [40]
    Section 662 and which remains as the only other section in chapter 65, is of some more interest because it provides in s 661(1) that:

1. “(1)
   Costs of a prosecution or defence must be taxed by the proper officer of the court in which the indictment is presented.”

In s 662(2), costs of defence are defined:

1. “(2)
   In this section—

costs of defence includes costs incurred by the accused person both before and after the person’s committal.“

41. [41]
    Although the phrase “costs of defence” is used in the headings to s 687 and 694 of the Code, the primary concern of those sections appears to be with costs incurred in respect of any application brought in the Supreme Court and in respect of proceedings brought upon leave granted by that court. Otherwise, an explanation for the definition in s 662(2) is to be found in s 699, which expresses a power to award “costs of defence”, in circumstances where parliamentary privilege may be established in relation to a prosecution for unlawful publication of defamatory matter. That power is expressed in terms of an order requiring “the prosecutor” to pay such costs and assuming that this is intended to encompass public as well as private prosecutors, this appears to be an identifiable instance of an exception to the general immunity of the crown to costs for pre-proceedings for an indictable offence.

42. [42]
    Leaving aside s 695 (as the applicant ultimately sought to do) the provisions of Chapter 70 clearly only apply to prosecutions by private information, which pursuant to s 686(1) require the leave of the Supreme Court for the presentation of the information and may only be filed in the Supreme Court^[36].The specific provisions of chapter 70 which deal with costs and in particular s 687 and 694 are only concerned with and directed at the making of costs orders against private prosecutors.

What is the effect of s 695?

43. [43]
    It therefore remains to consider the effect of s 695.

44. [44]
    The immediately obvious impediments to the application of this section to the indictment in this case, are that:

1. (a)
   Whilst, as has been noted above, amendments have been made to s 561 to enlarge the scope of persons who may present ex officio indictments, s 561 as originally enacted, allowed for presentment of such information or indictments by a Crown Law Officer and by “an officer appointed by the Governor in Counsel to present indictments”. Significantly, s 695 was originally and has remained, expressed as applicable to indictments presented “in the Supreme Court by a Crown Law Officer” and neither of those circumstances exist in the present case; and

2. (b)
   It is not possible to regard the expressed reference to the Supreme Court, as being in anyway inclusive of the District Court. It appears to be a deliberate statutory choice. Not only were there District Courts (with criminal jurisdiction in respect of indictable offences) in existence at the time of the original enactment of the Criminal Code,^[37] but there was also separate recognition of those courts in the Code, as originally enacted^[38] and it is notable that s 561 has always allowed for presentation of an ex officio indictment “in any court of criminal jurisdiction” and that the provisions of Chapter 60 are generally unspecific as to any particular court.

45. [45]
    In this case the indictment was not presented by a Crown Law Officer or in the Supreme Court or and assuming that s 694(c) would be picked up by s 695, was it a Crown Law Officer who informed the court of the Nolle Prosequi.

46. [46]
    Quite apart from those impediments to this application, I would not be prepared to reach the same conclusion as to the effect of s 695 as that reached (as obiter dicta) by Virtue J in R v Jackson and in respect of the Western Australian analogue (as it was enacted). First it can be noted that there is, at least, an error in respect of the wording of the Queensland section, as the word “court” appears instead of “crown”.^[39]Secondly, that view was obviously influenced by a different legislative history of this section in Western Australia, as within a year of original enactment, the Western Australian provision was amended by adding the words:

“and the last proceeding section shall not apply”;

and Virtue J saw this as a specific exemption of the crown from liability for costs under [the analogue to s 694] and an application of the ordinary immunity of the crown from liability for costs.^[40] Necessarily, the Queensland provision must be considered apart from that legislative history of a similar Western Australian provision.

47. [47]
    Significantly, s 695 is expressed in permissive terms, allowing the Crown to adopt, in respect of an ex officio indictment, the procedure provided in chapter 70 for private information. That manner of proceeding includes service of the indictment on the accused person, a written entry of appearance and filing of a written plea by the accused^[41] and provision for dealing with default in pleading.^[42]However, the expressed exception in s 695 is that “no security shall be required”. That exempts application of s 687, which provides:

687  Security to be given by prosecutor for costs of defence

“Before the information is presented the prosecutor is to be required to give security, in such amount and in such manner as the court on giving leave to present the information may direct, that the prosecutor will prosecute the information without delay, and will pay to the accused person such costs incurred by the accused person in respect of the person’s defence to the charge as the court may order the prosecutor to pay.”

48. [48]
    Accordingly, this section is instrumental in creating the liability for costs to be acknowledged by the giving of the security and which may arise in the circumstances set out in s 694. It is therefore, at least open to question whether in these circumstances, s 695 provides the necessary clarity of expression or implication of abrogation of the fundamental immunity of the crown from liability for costs and picks up any power to make a costs order, when circumstances of the kind referred to in s 694(c) are satisfied, whether as manner of procedure or otherwise.^[43]

49. [49]
    Whatever might be concluded in that respect it is, however, clear that the permissive expression of s 695 provides, in effect, an election for the Crown (or a public prosecutor acting in that right) as to proceeding under chapter 70, in relation to ex officio indictments. However, such a prosecutor need not do so and of course public prosecutions on ex officio indictment regularly do not proceed in this way, but rather in accordance with the usual procedure applicable to an indictment presented under Chapter 60. Those processes may initially be engaged by s 562.^[44] Thereafter the matter proceeds in the same manner as any indictment presented under s 560, including as to arraignment pursuant to s 597C.

50. [50]
    In this case, the matter did not proceed to arraignment because of the entry of a nolle prosequi, but prior to that the matter proceeded under the usual provisions, with the defendant being sufficiently bound by his bail undertaking in respect of the charge upon which he had been committed for trial.^[45]

51. [51]
    Put another way, there is no evidence that the prosecution sought to engage the provisions of Chapter 70 and this situation is yet another impediment to this application.

Conclusion

52. [52]
    Accordingly it should be concluded that there is no power to make the order sought by the application, with the consequential order that the application is dismissed.