R v Boulle[2006] QSC 253

SUPREME COURT OF QUEENSLAND

[1] FRYBERG J:To explain the significance of the relief sought in this application under s 590AA of the Criminal Code, it is of most assistance to begin by recounting the relevant events.  The evidence before me, from which this history is gathered, consisted of paragraphs 1-3, 5-7, 9 and 10 of the outline of submissions on behalf of the applicant (exhibit 1), which were admitted by the Crown; certain statements of fact made by counsel for the Crown which were admitted by the applicant (transcript pp 58-9); copies of three letters sent on behalf of the Director of Public Prosecutions (exhibit 2); and an affidavit sworn by Glen Peter Cash, a Crown prosecutor.

Procedural history

[2] On 8 September 2004 Aurelien Frederic Boulle was charged with unlawfully trafficking in the dangerous drug pseudoephedrine, unlawfully producing the dangerous drug methylamphetamine, two counts of possessing things for use in the commission of a drug crime (Telfast decongestant tablets and a medical prescription), 11 counts of fraud and one of attempted fraud.  The fraud related offences involved obtaining prescriptions for pseudoephedrine.  The use of these prescriptions formed the basis of the drug charges.  The places and dates at and between which the trafficking was alleged to have occurred are not in evidence, but it may be assumed that the offence was alleged to have been committed between the 13 July 2004 and 9 September 2004 at Brisbane and elsewhere in Queensland.  The trafficking charge was subsequently amended to allege that the drug was ephedrine rather than pseudoephedrine.

[3] The Crown case against Mr Boulle was described in the outline of submissions provided to me by counsel for the Crown:

“2. Between 14 July 2004 and 8 September 2004 Boulle consulted doctors on 14 separate occasions seeking prescriptions for large amounts of Sudafed or Telfast decongestant preparations. On each occasion he told the doctor a story which was a variation of the same theme: that he was going overseas for between three and six months and needed a large stock of tablets to manage his sinus condition. At the same time he obtained prescriptions for asthma drugs, seemingly in an attempt to disguise his true purpose.

3.On three occasions, the consulting doctor refused to issue a script for either Sudafed or Telfast. On the remaining 11 occasions, Boulle was given the prescriptions potentially enabling him to purchase as many as 2,260 tablets. He filled the majority of these scripts purchasing a total of 1,760 tablets.

4. When he was arrested on 8 September 2004 Boulle had in his possession 36 boxes (360 tablets) of Telfast tablets. When police searched his house they could find none of the other pseudoephedrine based tablets he had purchased over the previous seven weeks. However, police did find a large amount of unused asthma medication.

5. Boulle was interviewed and admitted to visiting two doctors to obtain scripts for either Sudafed or Telfast. He denied having visited any other doctors even after police told him they had requested information from the Health Insurance Commission. He maintained his story that he was going overseas on a lengthy diving trip. Subsequent police investigations established that the accused had not booked any overseas travel and had not made any other preparations for a diving trip.

6.There is evidence that the tablets obtained by Boulle could in theory produce well in excess of 100 grams of methylamphetamine. There is also evidence that, based on the recommended dosage, the 36 packets of tablets found in Boulle’s possession on 8 September 2004 would have lasted him more than six months.”

[4] Committal proceedings in relation to all charges were held on 13 May 2005 and on that date Mr Boulle was committed for trial before the District Court on the fraud related charges and before the Supreme Court on the drug charges.  It appears from the documents transmitted to the Court that he was granted bail.

[5] In due course the file was forwarded to the Office of the Director of Public Prosecutions, where it became the responsibility of Ms P Prasad, a Senior Legal Officer.  In late October or early November, presumably in the course of drafting an indictment, Ms Prasad came to consider whether the drug allegedly obtained by Mr Boulle was a dangerous drug within the meaning of s 4 of the Drugs Misuse Act 1986.  Ephedrine is undoubtedly such a drug: it is listed in schedule 2A of the Drugs Misuse Regulation 1987.  However the tablets handled by Mr Boulle contained pseudoephedrine, not ephedrine.  Pseudoephedrine is not listed in any of the schedules referred to in paragraph (a) of the definition of “dangerous drug”.  Consequently, on 2 November 2005 Ms Prasad consulted Mr Glen Cash, a Crown Prosecutor in the Office of the Director.  She sought his opinion as to whether the prosecution should proceed.

[6] Mr Cash discussed the definition with Ms Prasad.  He referred her particularly to s 4A of the Act:

“Salts, derivatives and stereo-isomers

4A  It is hereby declared that—

(a)a thing specified in the Drugs Misuse Regulation 1987, schedule 1, 2 or 2A; and

(b)a dangerous drug specified in the Drugs Misuse Regulation 1987, schedule 3, 4 or 5;

includes any salt, derivative or stereo-isomer of that thing and any salt of such derivative or stereo-isomer.”

He asked her to obtain an opinion from a chemist as to whether pseudoephedrine was a “salt, derivative or stereo-isomer” of ephedrine.

[7] Ms Prasad then spoke to Mr Peter Vallely, a chemist employed at the John Tonge Centre.  She understood him to say that pseudoephedrine was not caught by the extended definition in s 4A.  He does not remember the conversation specifically, but he is adamant that he would if asked have told her that pseudoephedrine was a stereo-isomer of ephedrine and would not have said that it was not caught by s 4A.  On 3 November Ms Prasad again discussed the matter with Mr Cash and told him that pseudoephedrine was not caught by s 4A.  On that basis Mr Cash decided that the charge of unlawfully trafficking in ephedrine could not proceed.  He also formed the view that on the evidence available it would not be appropriate to proceed with the charge of production of methamphetamine or with the other charges.

[8] That same day, pursuant to r 20(6) of the Criminal Practice Rules, Ms Prasad wrote to the solicitors for Mr Boulle:

“On 13 May 2005 the abovenamed [Aurelien Fredric Boulle] was committed for trial to the Supreme Court at Brisbane on a charge of Trafficking dangerous drug x 1, Producing dangerous drug x 1, Possessing things for use in connection with the commission of DMA offence x 2. This Office has decided to discontinue proceedings.”[1]

Eight days later, another officer wrote a similar letter in relation to the District Court charges.  On 15 November Ms Prasad told those solicitors that the reason the Crown would not be proceeding was that there was no such charge as trafficking in pseudoephedrine as the drug was not listed in schedule 1, 2 or 2A of the Regulation and therefore could not be trafficked.  The solicitors immediately informed Mr Boulle of the Crown's decision.

[9] There the matter would have rested but for the diligence of a police officer.  In March 2006, Detective Glen Farmer, a police officer involved in the investigation of Mr Boulle, contacted Mr Cash.  As a result, Mr Cash spoke to an unnamed chemist.  He was told that the information passed on to him in November 2005 was not correct and that pseudoephedrine was a stereo-isomer of ephedrine.  As a result the Director of Public Prosecutions instructed him to have an ex officio indictment presented to the Supreme Court alleging an offence of trafficking.  On 4 May 2006 Mrs D M Vasta, who was employed by Mr Boulle's solicitors, was informed by Mr Chris Minnery, an officer employed by the Director of Public Prosecutions, that the Director intended to present an ex officio indictment under s 561 of the Criminal Code on the following day. 

[10] On 5 May 2006 the Crown presented an indictment charging Mr Boulle that between 13 July 2004 and 9 September 2004 at Brisbane and elsewhere in Queensland, he carried on the business of unlawfully trafficking in the dangerous drug ephedrine.  Mr Boulle and his solicitors were present, but made no objection to the presentation.  Mr Boulle was again granted bail.

The present applications

[11] Mr Boulle sought the following orders:

1.A declaration that the indictment presented the 5th day of May 2006 was presented unlawfully in breach of s 590 of the Criminal Code, and is therefore of no effect.

2.That the Applicant be discharged from the consequences of his Committal Hearing.

The Crown denied his entitlement to such orders, but in the alternative applied for an order that the time in which to present an indictment consequent upon his committal on 13 May 2005 be extended until 5 May 2006 pursuant to s 590(2) of the Criminal Code.

[12] There is before me unchallenged evidence that pseudoephedrine and ephedrine are stereo-isomers of one another.  No such evidence was put before the committing magistrate.

[13] The argument advanced orally on behalf of Mr Boulle on the hearing of his application differed slightly from that in counsel's written outline because, at a late stage, the contention that there should be a stay was abandoned.  Instead, the relief sought took the form set out above.  It was not submitted on behalf of the Crown that, if the indictment is defective, Mr Boulle waived his right to complain by his failure to object at the time of its presentation.  I therefore need not consider whether the court can refuse to accept an ex officio indictment upon the objection of the accused person in circumstances where it is a nullity because it was not validly signed.

The indictment

[14] The power to present an ex officio indictment is conferred by s 561 of the Criminal Code.  That section provides:

“Ex officio indictments

561(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.

(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)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.”

[15] The Criminal Practice Rules impose certain duties on the Director of Public Prosecutions in relation to indictments:

“Director of public prosecutions

20(1)The director of public prosecutions must, before presenting an indictment or filing an application in the court, mark on it any applicable file number of the office of the director of public prosecutions.

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

(3)When presenting an indictment, the director of public prosecutions must give the proper officer of the court in which it is presented a written notice stating the Magistrates Court reference number, if any, for each charge in the indictment.

(4)If the director of public prosecutions presents an indictment against an accused person and the charges in the indictment differ from the committal charges, the director of public prosecutions must give written notice of the differences to the following—

(a)the accused person or the accused person’s lawyer;

(b)if the accused person is in the custody of the chief executive (corrective services), the chief executive (corrective services);

(c)the proper officer of the court in which the indictment is presented.

Examples of how charges in an indictment may differ from the committal charges—

• another charge may be added

• a committal charge may be omitted

• a circumstance of aggravation may be added to or omitted from a committal charge

• another charge may be substituted for a committal charge.

(5)The notice must state the committal charges and how the charges in the indictment differ from the committal charges.

(6)If the director of public prosecutions decides not to present an indictment against an accused person who has been committed for an offence, the director of public prosecutions must, as soon as possible after making the decision, give written notice of it to the following—

(a)the accused person or the accused person’s lawyer;

(b)if the accused person is in the custody of the chief executive (corrective services), the chief executive (corrective services);

(c)the proper officer of the court that committed the accused person;

(d)the proper officer of the court to which the accused was committed.

(7)In this rule—

committal charge means a charge for an offence for which the accused person was committed.”

[16] By the challenged indictment, Benedict John Power informs the Court of the offence.  The terms of the information comply appropriately with form 352 of the forms made under the Criminal Practice Rules.  The indictment is signed by Mr Power, but, contrary to form 1, his status as a person authorised to sign is not marked against his name.  There being no suggestion that he is not a person authorised to sign under s 561(2) of the Criminal Code, that omission is curable by amendment.  If the prosecution proceeds it should be cured: it matters that the court be able to see on the face of the indictment that it has been signed by an authorised person.[2]  Mr Boulle does not submit that the omission has any present significance.  In accordance with r 20(2) the fact that it is an ex officio indictment is stated on it.  At the top of it the Magistrates Court reference numbers are set out.  Mr Boulle does not submit that these should have been given by a separate notice pursuant to r 20(3) and it seems to me that this is sufficient compliance with that rule.  The Director of Public Prosecutions has not complied with rules 20(4) and (5), but it may be that in the case of an ex officio indictment, it is unnecessary to do so.  In any event, Mr Boulle does not make any point about the non-compliance.

[17] There is therefore nothing on the face of the indictment to suggest that it has not been signed in accordance with s 561 of the Criminal Code and there is no suggestion that the person who presented it was not a person authorised by that section to present indictments.  However Mr Boulle submits, in effect, that the expression “whether the accused person has been committed for trial or not” in that section means “whether the accused person has been committed for trial or not on some other offence”.  He submits that the section does not permit the presentation of an ex officio indictment for an offence in respect of which a defendant has been committed for trial.  In support of that proposition, he cites R v Foley.[3]

[18] Before turning to that case I note that it was not argued on behalf of the Crown that the ex officio indictment was unexaminable because a decision to prefer an indictment was unreviewable by the court.  That course was correct.  There is a clear distinction between reviewing a discretionary decision to present an indictment and considering the lawfulness of its signing or presentation:

“All this indicates that Parliament intended to give the Attorney-General for the Colony the unexaminable discretion possessed by the Attorney-General in England acting on behalf of the Crown. The function which the Attorney performs in commencing prosecutions is one that otherwise was performed by the grand jury whose decisions were not subject to judicial review except for matters going to essential regularity.”[4]

R v Foley

[19] Technically the ratio decidendi of Foley is not material to the present application.  However the passage upon which Mr Boulle relies, while technically containing obiter dicta, is part of in a very deliberate excursion by a unanimous Court of Appeal to consider the question.  I would not refuse to follow it unless I were convinced that it was clearly wrong.  I am not so convinced - quite the contrary.  Although Mr Fuller for the Crown seemed in the course of argument to express some doubts as to its correctness, he did not submit that I should not follow it and he refused an invitation to apply for a stated case.  I therefore proceed on the basis that the law as there stated is correct.

[20] The relevant facts of Foley can be stated shortly.  Foley was committed for trial for unlawful assault occasioning bodily harm on 13 July 2001.  No indictment was presented during the following six months.  Precisely why that happened is unclear; the reason was stated by the Court to be “inefficiency in the management of the Director’s Office”.[5]  On 5 February 2002 the Director of Public Prosecutions applied to the District Court for an extension of time pursuant to s 590 of the Criminal Code, which provides:

“Bringing accused to trial

590(1)Subject to s 561, when a person charged with an indictable offence has been committed for trial and it is intended to put the person upon his or her trial for the offence, the director of public prosecutions or a Crown prosecutor must present the indictment no later than 6 months after the date on which the person was committed for trial.

(2)If—

(a)an indictment is not so presented; or

(b)it becomes apparent that evidence necessary to establish the offence is not going to be available; or

(c)the accused has absconded and is not likely to be found before the expiry of the period; or

(d)for any other reason it is impracticable to present the indictment;

the director of public prosecutions or a Crown prosecutor may apply to the court at any time before or after the expiry of the period for an extension of time within which to present an indictment.

(3)The court hearing the application may, if satisfied that good cause is shown and no miscarriage of justice is likely to result, grant the extension of time the court considers just.

(4)If an indictment is not presented before the expiry of the period or any extension of the period, the person is entitled to be discharged from the consequences of his or her committal.”

That application was refused.  Despite that refusal, an indictment was signed by the Director and presented to the District Court only a week later.  The person who presented it was not authorised to do so.  For this reason the Court held that the indictment had not been “presented” within the meaning of that term in s 560 of the Criminal Code.  Apparently the Director had indicated an intention to present an ex officio indictment in the event of such a finding, so the Court went on to consider her power to do so in the circumstances of the case.  It held that no such indictment could be presented charging Foley with the offence for which he had been committed.

[21] In the course of its reasons the Court said:[6]

“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 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 that 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 be indicted only for that offence. There is no reason to think that its purpose was altered by the amendment of s 590. 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 or discharge.”

It must follow that if an ex officio indictment cannot be presented in such circumstances it cannot be signed either.

[22] Mr Fuller sought to distinguish Foley on two bases.  First, he pointed out that in Foley , an application for an extension of time under s 590 had been refused, whereas in the present case no such application has been made.  I do not think this is a material difference.  The point of the discussion in Foley was that to allow the presentation of an ex officio indictment for the very offence upon which the accused was committed would circumvent s 590.  That reasoning applies with equal force regardless of whether or not an application for an extension of time has been made, once the six month limit has expired.  In one case the order dismissing the application would be frustrated; in the other the need to make an application would be frustrated.  In both cases the operation of the section would be circumvented.  Different considerations might apply to an ex officio indictment presented within the six month period and some of them are referred to below.  In the present case that period had well and truly expired when the ex officio indictment was presented.

[23] Second, Mr Fuller submitted that Foley could have no application in the circumstances of the present case because Mr Boulle had been discharged from the effects of the committal inside the six month period.  From 3 November 2005 (or 11 November 2005 at the latest) he ceased to be liable to the presentation of an indictment under s 560 because the Crown had terminated the effects of the committal by its letters under r 20(6) of the Criminal Practice Rules.  That occurred inside the six month period which expired on 13 November.  Consequently, there was never any possibility of circumvention of s 590 in this case.  That being so, an ex officio indictment could be presented.  In support of that argument Mr Fuller cited the decision of Robertson DCJ in Vandermeer v The Queen.[7]

Vandermeer v The Queen

[24] The relevant facts in Vandermeer are, in my judgment, indistinguishable from those in the present case.  On 26 October 2001 a magistrate committed Vandermeer for trial in the District Court on one count of indecent assault.  On 13 February 2002 the Director of Public Prosecutions sent letters (I infer under r 20(6)) informing Vandermeer's solicitors and the Court that it had been decided that an indictment would not be presented against him.  The letter to the solicitors added that Queensland Police had been advised to proceed with a charge of common assault in the Magistrates Court.  On 29 November 2002 an ex officio indictment was presented to the District Court charging Vandermeer with indecent assault of the same person and on the same date as the assault for which he had been committed for trial.  There was no doubt that it was the same assault which was being alleged in both cases.  It is unnecessary to set out the intervening circumstances which led to this change of mind.  It suffices to say that they make the change of mind understandable.

[25] I acknowledge with respect the assistance which I have gained from Judge Robertson's reasons.  I hope the following summary does them justice.  His Honour observed that the consequence of a decision by the Director of Public Prosecutions not to present an indictment (or at least the consequence of the communication of such a decision to the relevant persons under r 20(6) of the Criminal Practice Rules) was that the accused was released from custody[8] or (if on bail) discharged from complying with his undertaking.[9]  He concluded that having regard to those matters, the written notification to the accused and the court constituted an end to the legal effects of the committal from the date of the notification.  Although the expression “no true bill” is not used in the Criminal Code, his Honour regarded those notifications as equivalent to the historical procedure of the endorsement of that expression by a grand jury on a bill of indictment.  He held that because the legal effects of the committal had been terminated, s 590 had no application.  It followed in his judgment that there was no obstacle to the subsequent presentation of an ex officio indictment.

[26] At first sight it seems odd that an administrative step such as sending a letter should affect the legal position, particularly when that position is determined by the words of a Code and the route to such a conclusion involves a common law procedure which has no place in that Code.  His Honour's reasoning raises these questions: 1) did the endorsement of “no true bill” by the foreman of a grand jury terminate the effects of a committal; 2) if so, does the signing (or possibly the delivery) of letters under r 20(6) of the Criminal Practice Rules also terminate the effects of a committal; 3) if so, is it open to the Director of Public Prosecutions to present an ex officio indictment under s 561 of the Criminal Code charging an offence for which the accused was committed after the Director has signed such a letter.  To answer those questions requires an excursion into legal history.

“No true bill”

[27] At the time of settlement in New South Wales, the usual pre-trial procedure in England in cases of indictable offences involved two stages: first, justices from the locality where the offence was committed conducted an inquiry; then the case was considered by a grand jury.  The process was described by Dawson J:

“Justices[10] originally acted, in the absence of an organized police force, in the apprehension and arrest of suspected offenders. Following the Statutes of Philip and Mary of 1554 and 1555 (1 & 2 Philip & Mary c.13; 2 & 3 Philip & Mary c.10), they were required to act upon information and to examine both the accused and the witnesses against him. The inquiry was conducted in secret and one of its main purposes was to obtain evidence to present to a grand jury.[11] The role of the justices was thus inquisitorial and of a purely administrative nature. It was the grand jury, not the justices, who determined whether the accused should stand trial.”[12]

If in the course of the justices’ inquiry “it manifestly appear[ed], that either no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it [was] lawful totally to discharge him.  Otherwise he must either [have been] committed to prison, or [given] bail.” [13]  The committal was for safe custody; so bail was taken wherever possible.

[28] With the establishment of an organised police force in England in 1829, the role of the justices in England changed.  What Dawson J described as the most significant factor in that change was the passage of the Indictable Offences Act 1848 (UK), more commonly called Jervis's Act.[14]  Greater emphasis was placed on recording the depositions in writing.  The accused was no longer obliged to be examined but was to be invited to make a statement without any obligation to do so.  Jervis's Act was adopted in New South Wales in 1850[15] and so was applicable in Queensland at the time of separation.[16]  The law in Queensland was consolidated and simplified in the Justices Act 1886.  Under that Act the justices were required to “order the defendant to be committed to be tried for the offence before some Court of competent jurisdiction” and in the meantime to “commit him to gaol, to be there safely kept until the sittings of the Court before which he is to be tried, or until he is delivered by due course of law or admitted to bail”.  Thus it became conventional to refer to an accused person as having been committed for trial, regardless of whether he or she was sent to prison or granted bail.

[29] In England the ordinary method of bringing a matter before a grand jury was by a bill of indictment.  Blackstone described an indictment as “a written accusation of one or more persons of a crime or misdemeanour, preferred to, and presented upon oath by, a grand jury.”[17]  Any person had the right to present an indictment to the grand jury,[18] but usually a prosecutor, acting on the suit of the King, did so.  It made its determination after it had heard the evidence:

“When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill, ‘ignoramus’ or, we know nothing of it; intimating, that though the facts might possibly be true, that truth did not appear to them: but now, they assert in English, more absolutely ‘not a true bill’ or (which is the better way) ‘not found’ and then the party is discharged without farther answer. … if they are satisfied of the truth of the accusation, they then endorse upon it, ‘a true bill’; antiently ‘billa vera’. … And the indictment, when so found, is publicly delivered into court.”[19]

The precise mechanism by which the accused was discharged in the event of a no true bill is not described.  It probably does not matter.  It is clear that the accused was entitled to be released from prison and his exposure to trial before a (petty) jury was terminated.  As the High Court expressed it in Davis v Gell,[20] the prosecution was terminated.  In terms of the first question posed above,[21] a no true bill terminated the effects of a committal.

The position in Queensland

[30] The grand jury never became established in Australia.  In the early years of settlement in New South Wales, there was no trial by jury, and no Supreme Court in which to try indictable offences.  The latter was established with criminal jurisdiction in 1823.  Dawson J described what happened:

“In 1823 the New South Wales Act (Imp.) (4 Geo.IV c.96) provided that those crimes which would nowadays be indictable offences should be prosecuted ‘by information in the name of His Majesty's Attorney General, or other officer duly appointed for such purpose by the governor’: s.4. A similar provision was subsequently made by s.5 of The Australian Courts Act 1828 (Imp.) (9 Geo.IV c.83) but it was expressed to be an interim measure pending the constitution of grand juries. … Grand juries were never constituted, but the term ‘information’ continued … .”[22]

The procedure remained unchanged when trial by petty jury was introduced.[23]  An accused person was brought before justices and was discharged, committed to prison or admitted to bail. The decision depended upon whether a sufficient case had been made against the accused.  For all practical purposes, that was the same decision as had to be made in England by a grand jury; but the justices did not perform the function of the grand jury.  As Dawson J put it, “[I]n New South Wales indictment on behalf of the Crown in the name of the Attorney-General or the Director of Public Prosecutions takes the place of the grand jury's bill and the indictment founded upon it.”[24]

[31] I assume that the position in Queensland continued to be governed by the 1828 Act until the passage by the Parliament of Queensland of the Supreme Court Constitution Amendment Act 1861.  Cognate provision was made by s 20 of that Act:

“All treasons felonies misdemeanours and offences cognisable in the said Court or at any sittings thereof to be holden pursuant to the provisions of this Act in the said Colony shall be prosecuted by information in the name of Her Majesty's Attorney-General or Solicitor-General for the said Colony or of such other person as the Governor of the said Colony may appoint who shall respectively perform the duties of a grand jury until other provisions shall be made in that behalf by Act of the legislature ... ”

In 1862 the duty of the Attorney-General to act in this way was regarded by Lutwyche J as so obvious that citation of authority was unnecessary: “Before the judicial inquiry [trial] can be instituted, the decision of the committing magistrate has to be reviewed by the Attorney-General, as grand jury for the colony.”[25]

[32] By s 23 of the Supreme Court Constitution Amendment Act 1863 , provision was made for the Attorney-General to issue a warrant for the discharge of a prisoner against whom no information was to be filed.  That section was replaced by s 28 of the Supreme Court Act 1867 , and it now finds expression in s 205 of the Supreme Court Act 1995 :

“205 Attorney-General to issue warrant for discharge of prisoner against whom the Attorney-General does not file information

In order to prevent persons committed to gaol upon charges of crime or misdemeanour and against whom Her Majesty’s Attorney-General or other duly appointed prosecuting officer declines to file an information from suffering unnecessary imprisonment it shall be lawful for the Attorney-General in respect of any such persons to issue at any time a warrant under the Attorney-General’s signature addressed to the sheriff or gaoler in whose custody any such prisoner shall be and in and by such warrant to authorise such sheriff or gaoler (who is hereby also authorised so to do) immediately and without fee or reward to discharge the prisoner therein mentioned from imprisonment in respect of the offence mentioned in the said warrant and if any such sheriff or gaoler shall refuse or neglect so to do the sheriff or gaoler shall for every such offence forfeit and pay to the use of Her Majesty a fine or penalty of $100 to be recovered by action of debt in the name of the Attorney-General.”

[33] Section 20 of the Supreme Court Constitution Amendment Act 1861 was replaced without amendment by s 27 of The Supreme Court Act of 1867.  That section continued to govern the presentation of indictments in this Court until the Criminal Code came into force in 1901. Section 560 of the Code, as originally enacted, made provision for indictments to be signed and presented to the court by a Crown law officer or some other person appointed in that behalf by the Governor-in-Council.  There was no requirement for the indictment to be in the name of the Attorney-General or the Solicitor-General.  No express obligation to perform the duties of a grand jury was imposed, but it has always been accepted as one of the duties of a prosecutor to ensure that there is sufficient evidence to warrant a trial.  That remains the position under s 560 in its present form:

“Presenting indictments

560(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.

(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.”

[34] In R v Webb, Philp J said, “The magistrate thus fulfils in part the function of a grand jury and that function is also partly fulfilled by the Crown Prosecutor who after perusal of the depositions may recommend a no true bill.”[26] In light of the terms of s 23 of the Supreme Court Act 1861 and s 27 of the Supreme Court Act 1867, I doubt it is accurate to say that the magistrate fulfils in part the function of a grand jury.  During the 19th century the function of the justices overlapped that of the grand jury in the sense that both were concerned with the sufficiency of the evidence against the accused person.  However it was the law officers or Crown prosecutors who were fixed with the obligations of the grand jury.  Nothing in the Criminal Code altered that position.

[35] It does not necessarily follow from the fact that the law officers and prosecutors have those duties that a decision by them, even in writing, not to present an indictment automatically discharges the accused from the consequences of his or her committal.  For the accused those consequences are twofold: either imprisonment or the obligations of a bail undertaking on the one hand and vulnerability to being indicted on the other.[27]  One would have thought that a step of such importance would have been explicitly described and formalised by statute; but this has not happened.  Provision for discharges of different types has been made in a number of sections of the Criminal Code,[28] but none covers this case.

[36] The effect of a determination by the Director of Public Prosecutions not to proceed with a prosecution was considered in R v Scott.[29]  There, the Director of Public Prosecutions Act 1990 (ACT) expressly provided a power for the Attorney-General or the Director to decline to proceed further in a prosecution and to cause it to be brought to an end.  It further provided that where that occurred in relation to a person who had not been indicted and the person was in custody, the Director should by warrant direct the discharge of the person from custody.  Cooper J, with whom Miles J agreed, referred to several similar provisions in other jurisdictions, including what is now s 205 of the Supreme Court Act 1995.  He wrote, “The sections recognise that the Attorneys-General or the Director of Public Prosecutions have a discretion whether to present an indictment or not.  That discretion has a place in the administration of criminal justice in all jurisdictions in Australia including the ACT.”[30] After quoting extensively from the history set out by Dawson J in Grassby, Cooper J continued:

“Termination of the prosecution by the Attorney-General or the Director of Public Prosecutions has two consequences. The first is that there is never a criminal judicial proceeding because no indictment is presented to enliven the jurisdiction of the court. …

The second consequence is that the accused person is discharged from the operation of the magistrate's order committing him for trial and the recognisances on bail. This conclusion follows for two reasons. The first is the operation of the principle lex non intendit aliquid impossible. That is, that the law does not require the performance of that which is impossible (see Fishing in the River Thames (1612) 12 Co Rep 89; 77 ER 1365; Davis v. Gell at 289). Where by the act of the Attorney-General or the Director of Public Prosecutions it has been put out of the power of an accused person to perform the obligations imposed by the order of commitment and the conditions of the recognizances on bail, the law does not require that thereafter the accused person do the impossible. Additionally, the form of the statutes granting to an Attorney-General or a Director of Public Prosecutions the power not to proceed recognises that the exercise of that power requires no further consequential steps to be taken in relation to the committal proceedings or what flowed from them, save in the case of a person in custody. The older drafting style makes clear the legislative purpose and intent.”

By way of example his Honour referred to what is now s 205 of the Supreme Court Act 1995.  He continued:

“The duty of the committing magistrate having made the decision to commit, is to make such further orders as are necessary in order to ensure that an accused person will attend and take his trial. One of those ways is by a remand in custody. Another is by admission to bail with or without recognisances. Once the decision not to proceed has been made, imprisonment thereafter is unnecessary because no trial will proceed. The clear intent of the section is to ensure that an accused person will be released from jail immediately in respect of the offence and to provide the statutory authority to both the Attorney-General or Director of Public Prosecutions and the prison authority to release the person from custody. There is no suggestion in the sections that once released, that person remains bound by an order of committal of a magistrate.

The admission of an accused person to bail with recognisances, while necessary at the time of commitment, likewise becomes unnecessary in the relevant sense when the decision not to proceed further is made. It is the administrative act of the Attorney-General or Director of Public Prosecutions which operates to discharge an accused person and his bail from further compliance with the administrative order of the committing magistrate and from the undertakings and conditions of the recognizances. No further administrative or judicial act is necessary in relation to persons on bail. That is not the case where a person is remanded in custody and it is for that reason that the statutes provide for the additional act on the part of the Attorney-General or Director of Public Prosecutions to secure the release from custody of that person.”[31]

[37] Save in one respect, a similar position exists in Queensland.  The terms of s 205 of the Supreme Court Act 1995 and r 20(6) of the Criminal Practice Rules have already been quoted.[32]  The exception is in relation to bail, referred to in the last paragraph quoted.  In that regard the position in Queensland is even clearer.  Not only does r 20(6) require notification of the decision to be given to both the committing court and the court to which the accused was committed, but also s 36B of the Bail Act 1980 provides:

“36B When bail ceases to have effect

Where the director of public prosecutions or, as the case may be, deputy director of public prosecutions or a person duly authorised by the director or deputy director in writing in that behalf, either generally or in a particular case, advises the court to which a defendant has been committed for trial that the director or deputy director will not be presenting an indictment against the defendant the defendant is thereby discharged from complying with the conditions specified in the defendant’s undertaking and to which the undertaking is subject pursuant to this Act and thereupon the undertaking shall cease to have effect.”

By that mechanism the bail obligations of the accused are terminated.

[38] The foregoing reasoning was expressed, albeit much more concisely, by Judge Robertson in Vandermeer.  His Honour concluded that the written notification to the applicant's solicitor and to the court brought to an end to the legal effects of the committal.  I agree with that conclusion.  It is unnecessary to decide whether the mere act of signing the letters was sufficient.  It must be inferred that all were duly delivered.  The delivery of the letters (at the latest) was the equivalent of an endorsement by a grand jury of no true bill.  In terms of the second question posed above,[33] it had the effect of terminating proceedings upon the committal.

The availability of an ex officio indictment

[39] Did that mean that the way was open for the Director to present an ex officio indictment charging the same offence?  At this point I regret my view diverges from that of Judge Robertson.  His Honour's view was that the prohibition on presenting an ex officio indictment for the same offence as that for which the accused was committed was limited to cases to which it was possible to apply s 590.  In my judgment there is no such limitation.  The construction of s 561 adopted in Foley was based on the view that any other decision would circumvent the safeguard provided by s 590.  That safeguard would in my judgment equally be circumvented by permitting the termination of committal proceedings by the Director inside the six month period provided by that section and the reinstitution of proceedings for the same offence by ex officio indictment thereafter.

[40] Is there anything in the nature or history of ex officio indictments to would suggest a different conclusion?  The very expression is beset by some historical ambiguity:

“In New South Wales the indictment also takes the place of the ex officio criminal information which it was the established privilege of the Attorney-General to file in the Queen's Bench Division of the High Court at will or at the relation of a private person or common informer. See Holdsworth, A History of English Law, 3rd ed. (1944), vol.9, at pp 236 et seq. Section 12 of the Administration of Justice (Miscellaneous Provisions) Act 1938 (U.K.) abolished criminal informations, although ‘informations filed ex officio by His Majesty's Attorney-General’ were preserved. As a matter of practice ex officio informations have ceased to be used at all in the United Kingdom. See Edwards, The Law Officers of the Crown, (1964), p 266. Notwithstanding the element of historical inaccuracy, any indictment filed in New South Wales in the absence of committal for trial, whether or not there have been committal proceedings, is commonly referred to as an ex officio indictment. See Barton v The Queen (1980) 147 CLR 75; Kidston, ‘The Office of Crown Prosecutor’, (1958) 32 Australian Law Journal 148.”[34]

[41] The position in colonial Queensland was similar to that in New South Wales.  No statutory provision was made for ex officio indictments.  I have not examined whether the prerogative power exercised in England by the Attorney-General was asserted in the colonies.[35]  (It may have been open to the Attorney to apply for leave to present an indictment under s 6 of the Australian Courts Act 1828 or its successors, s 21 of the Supreme Court Constitution Amendment Act 1861 and s 29 of the Supreme Court Act 1867.  These sections enabled any person to apply for such leave.[36]) The statutory omission probably reflected the distaste for ex officio indictments engendered by “a long struggle between the Crown and the Commons going back to the time of Edward III”.[37]  By the time Australia was settled the Attorney-General’s power to present ex officio indictments had become limited in practice to indictments for misdemeanours affecting the State or the Sovereign.  Indictments for treason, felonies and misdemeanours other than those affecting the State or the Sovereign could be presented only after a grand jury had found a true bill.[38]

[42] The position in Queensland changed with the enactment of the Criminal Code.  Although originally headed “Ex officio informations”, s 561 conferred an express power to present indictments on Crown law officers and others appointed for that purpose.  Curiously, the section was silent as to the signing of such indictments, a position which continued until 2002.  The current form of the section is set out above.[39] 

[43] 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”.[40]  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.[41]  Apart from Vandermeer, no case was cited to me in which the prosecution had decided that the evidence was insufficient, issued letters under r 20(6) of the Criminal Practice Rules, and then changed its mind.  Those cases aside, the normal position is that committal proceedings are held and if the accused is committed for trial or sentence, an indictment is presented under s 560.  The benefits said to flow from this procedure were summarised by Dawson J:

“The importance of the committal in the criminal process should not, however, be underrated. It enables the person charged to hear the evidence against him and to cross-examine the prosecution witnesses. It enables him to put forward his defence if he wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued. Indeed, the significance of the magistrate's decision is clearly reflected in the requirement now contained in s 41(6) of the Justices Act that the magistrate should discharge a defendant if he is of the opinion that, having regard to all the evidence, a jury would not be likely to convict. Furthermore, the value of committal proceedings to a person charged may be such as to warrant a trial being stayed or postponed where an ex officio indictment has been presented without committal proceedings, in order to prevent an abuse of process of the trial court and to ensure a fair trial: Barton v The Queen.”[42]

[44] The purpose of s 590 in both its original and current forms is to ensure that, where a person has been committed for trial, he or she is indicted within a reasonable time thereafter.[43]  It implements the principle that in the absence of special reasons, a person committed for trial is entitled to a speedy trial or discharge.[44]  Under the present form of the section, a reasonable time is six months from the date of the committal or such extended period as the court may allow.  Absent an extension of time, an accused person against whom an indictment has not been duly presented is entitled to be discharged from the consequences of the committal.

[45] Against that background, I turn to the Crown's second argument.[45]  As a matter of principle, it is difficult to see any reason why the purpose just described would not be circumvented by the presentation of an ex officio indictment some 12 months after committal, without there having been any application for an extension of time.  The Crown contends for the validity of that result on the basis that the effects of the committal were spent before the expiry of six months, so there was never any scope for s 590 to operate.  It implicitly accepts (although it did not do so explicitly) that had the proceedings been terminated (whether by order under s 590(4) or by letters under r 20(6)) after the expiry of six months from the date of committal, no ex officio indictment could subsequently be signed or presented.  Why should it be different if the termination occurred inside six months from that date?

[46] Mr Fuller submitted (in effect) that if the issue which s 590 sought to address was the untimely presentation of an indictment, that issue was brought to an end by the discontinuance of the matter.  The time limit then had no work to do because of the intervention of another act.  With respect, that proves too much.  The principle is that, subject to any extension which the court might grant, an accused is entitled to either be discharged or have an indictment presented within six months from committal.  Section 590 assumes that once the accused is discharged from the consequences of the committal, no further indictment for the same offence will be presented on the basis of that committal.  It does not matter whether the discharge occurs under s 590(4) or by reason of letters under r 20(6).  That cannot alter the construction given to s 561 in Foley.  That section “does not permit the presentation of an ex officio indictment for an offence in respect of which a defendant has been committed for trial”.[46]  Neither, by parity of reasoning, does it permit the signing of such an indictment.

[47] Mr Fuller submitted that if this reasoning were correct, then no distinction could be drawn between the present case and one where, on facts otherwise the same, an ex officio indictment was presented inside the six month period.  In such circumstances, he submitted, Foley surely could not apply.  Not only would there be no circumvention of s 590, but also there would never be any scope for the application of the section since at no time would it have been “intended to put the person upon his or her trial” in consequence of the committal.  I need not decide if that submission is correct.  That is not what happened in the present case.

[48] In my judgment Mr Power had no right or authority to sign or present an ex officio indictment on 5 May 2006 charging Mr Boulle with the offence for which he had been committed for trial.  Paragraph 1 of Mr Boulle's application succeeds.

[49] The relief sought in paragraph 2 cannot be granted if the application by the Crown for an extension of time under s 590(2) succeeds.  Consideration of it is therefore deferred until after consideration of the application for the extension.

Application for extension of time

[50] The Crown's application is for an extension of time to 5 May 2006, the date of presentation of the ex officio indictment.  However the application was not filed until the day of the hearing, 14 August 2006.  Even if such relief be available, it would have to be granted in respect of an indictment which, on the findings made above, was not validly signed and is in form an ex officio indictment, not an indictment under s 560.  It was submitted that the last matter could be cured by an amendment, but no submissions were made in relation to the other two difficulties.  Instead in Mr Fuller's supplementary submissions, it was suggested that it may be appropriate for the Crown to amend its application to seek an extension until after I give judgment and then to present a new indictment under s 560.

[51] In my judgment that suggestion is correct.  Subject to any submissions on the point which I might receive on behalf of Mr Boulle, I would be prepared to allow an appropriate amendment to the Crown application.

[52] Two questions arise in relation to the application.  The first is whether, having terminated the consequences of the committal, the Crown may nonetheless present an indictment under s 560.  The second is whether an extension of time should be granted.  Section 590(3) confers a discretion on the court to grant such extension of time as it considers just “if satisfied that good cause is shown and no miscarriage of justice is likely to result”.

[53] In reaching a conclusion on the first question, I have not been assisted by submissions on behalf of Mr Boulle.  His case always was that the letters under r 20(6) did not have the effect of terminating the consequences of the committal.  Consistently with that approach it remained open to the Crown to make an application under s 590.  That was, on the submission, a powerful reason why the Crown could not present an ex officio indictment.  My acceptance of the Crown's submissions regarding the effect of the letters necessarily means that this submission must be rejected.  No alternative submission was advanced.

[54] In my judgment, the termination of the consequences of the committal by the letters sent under r 20(6) meant that it was no longer open to the Crown to present an indictment under s 560.  The power of the magistrate was to order that Mr Boulle be “committed to be tried for the offence before a court of competent jurisdiction”[47] and doubtless that is what the magistrate did.  For reasons already discussed, the letters terminated that state of committal.  Thereafter Mr Boulle was no longer a person who “has been committed for trial” within the meaning of that phrase in s 560(1).  Consequently the power to sign and present the indictment conferred by s 560(2) is not engaged.  It is therefore inappropriate to consider an application under s 590(2).  The application must be dismissed.

[55] In case I be wrong in relation to that conclusion, I should indicate how I would have exercised my discretion had the application been open.  Mr Boulle did not submit that an extension of time might result in a miscarriage of justice.  Submissions on his behalf focused on the question of whether good cause was shown within the meaning of s 590(3).[48]  He did not suggest that he suffered any prejudice by reason of the delay or would suffer any prejudice by reason of the Crown's change of tack.  He called no evidence himself and did not seek to cross-examine Ms Prasad (who became available), Mr Cash or Mr Vallely.  Their evidence is therefore unchallenged.  Although that evidence leaves a number of questions unanswered, it explains how the delay occurred and demonstrates that the decision to send the letters was caused by a simple misunderstanding.  The evidence does not point to an absence of proper systems in the office of the Director nor any improper conduct on the part of any of her subordinates.  The charge is a serious one and on the admittedly somewhat flimsy evidence before me, the Crown case seems a reasonably strong one.  In these circumstances I would have allowed the application on the merits.

Application for discharge

[56] Mr Boulle applied for an order that he be discharged from the consequences of his committal pursuant to s 590(4) of the Criminal Code.  Mr Kent frankly told me that he made this application out of an abundance of caution.  His primary position was that the Crown's application for an extension of time should be dismissed, and that once that occurred, Mr Boulle was automatically discharged by operation of law.  The argument was conducted on the basis that the letters under r 20(6) did not have the effect of discharging Mr Boulle from the consequences of the committal.

[57] Disregarding those letters for the moment, I would not accept that submission.  If it were correct it would seem to follow that an accused person would be left in some sort of limbo if the Crown neither presented an indictment nor made an application for an extension of time.  A much more workable construction of the section is that once the period of six months expires, it is open to an accused to make an application to be discharged.    That was the construction adopted by Mackenzie J in Re Jenkin,[49] citing Ryan J in R v Talbot:[50]

“Section 590(3) does not operate to effect an automatic discharge; it gives an applicant an entitlement to a discharge.  If that entitlement was wrongly denied to him, his remedy was to take proceedings to assert it.”

Ordinarily such an application would be unnecessary, as one would expect that the Crown would take action itself once it was decided not to proceed.  If the question were still open, an application by the accused would no doubt produce a counter-application for an extension of time or a decision not to proceed. 

[58] In the present case the Crown has already terminated the consequences of the committal.  The letters operated as a discharge.  The application is therefore redundant.  No order should be made on it.

Conclusion

[59] Mr Fuller submitted that the foregoing outcome amounted to a finding that the Crown was statute barred from proceeding by its decision to discontinue the prosecution.  Such an outcome found no support in the Code.  It is not in my judgment correct to analyse the outcome as a finding that the Crown is statute barred from proceeding.  No statute bars its way.  It cannot proceed further because it has by its own acts terminated the matter.  The lis no longer exists.  In such circumstances the outcome is unsurprising.

[60] There is of course no bar to further committal proceedings.  A decision not to prosecute does not make the matter res judicata.  Moreover with the benefit of hindsight one can see that there is a degree of justice in requiring further committal proceedings if the prosecution is to continue.  The evidence before the magistrate at the committal was incomplete.  It did not demonstrate that Mr Boulle possessed ephedrine or a stereo-isomer of it.  Had the point been raised the prosecution would have had to produce some evidence or the charge would have been dismissed.  Mr Boulle was entitled to the opportunity to test that evidence if he wished to do so.

[61] The committal was apparently a full handup committal.  There is no reason to suppose that a second committal proceeding would be any different unless Mr Boulle wishes to test the scientific evidence.  He is entitled to do so if he wishes.  On the other hand he will no doubt be advised of the sentence benefits which accrue to persons who consent to the presentation of an ex officio indictment to facilitate an early plea of guilty.  He has the chance to display great willingness to cooperate in the administration of justice if he wishes to do so.

Orders

[62] The form of order set out in Mr Boulle's application is taken from Foley.  It refers to unlawful presentation of the indictment, which was what occurred in that case.  In the present case the indictment is devoid of legal effect because it was not validly signed.  I propose simply to make a declaration that it is void.

[63] The Crown has leave to amend its application in accordance with these reasons, but the application must be dismissed.