R v BDT

In this case the accused was called upon to plead to a copy of a replacement indictment that had been emailed to the court registry. The accused entered pleas of not guilty. The trial began and the document was later substituted with the replacement indictment. It was held (per Mullins P and Morrison JA; with whom Williams J agreed) that s 560(2) when read in context with ss 597C(1) and 604(1) Criminal Code 1899 requires that an accused be arraigned upon an indictment “personally signed” by an authorised person and presented to the court. A copy of an indictment is not a document signed by an authorised person. As the accused was arraigned upon a document that was not the replacement indictment, the trial was a nullity. The appeal was allowed, the convictions were set aside, and a retrial was ordered.

Mullins P and Morrison JA and Williams J

19 August 2022

Background

The appellant was convicted by a jury of a number of sexual offences. [1], [21]. An indictment had originally been presented in the Townsville District Court where the complainant’s evidence was pre-recorded (the “original indictment”). [2], [28]. The original indictment was then transferred to the Bowen District Court for trial. [2], [28]. Before the trial began, the trial judge noticed an error in the particulars of two counts on the original indictment. [3], [29]. Those counts alleged that offence had occurred over a period of some months, when what was intended was to allege that the offence was committed on dates unknown between the dates specified in each count. [3], [29].

The prosecutor did not hold a “commission to prosecute”. [3], [29]. For this reason, it was proposed that a replacement indictment would be signed by an authorised person. [3]. The replacement indictment would not arrive until the next day, however, a copy had been emailed to the court registry. [3]. The appellant was called upon to plead to the copy of the replacement indictment and entered pleas of not guilty. [4]–[5], [39]. The trial began and the appellant was placed in the charge of the jury. [5]. The replacement indictment and a nolle prosequi indicating that the Crown would not further proceed upon the original indictment arrived the next day. [5], [45].

The replacement indictment was substituted for the copy that had been used the previous day. [5]. This occurred in the absence of the jury. [5], [45]–[46]. The appellant was not called upon to plead to the replacement indictment on the basis that the appellant had been arraigned on the replacement indictment, albeit “the emailed copy of the original”. [5], [45]. There was no demur from defence counsel, indeed, the trial judge was told that the approach was “the approach [they] would have submitted [was] the appropriate one to adopt.” [45]. There was no suggestion that the copy of the replacement indictment was anything other than identical to the replacement indictment. [47].

It was argued on behalf of the appellant that a miscarriage of justice occurred on the basis that the trial began upon document which was not the replacement indictment. [6]. The appellant relied on R v LT [2006] QCA 534 (“LT”) to argue that s 560(2) is a provision of “fundamental importance” and departure from its terms meant that the trial was not “lawfully commenced or engaged”. [6]. The respondent argued that LT could be distinguished on the facts of this case. [7]. The replacement indictment had been brought into existence before the trial began and the presentation of a copy resulted in the court being in “constructive possession” of the replacement indictment. [7].

Whether the trial was a nullity

An indictment is “a written charge preferred against an accused person in order to bring the person’s trial before some court other than the justices exercising summary jurisdiction”: Criminal Code 1899 s 1 (definition of “indictment”). [8]. A trial begins “on the presentation of the indictment or at any later time” when the accused is called upon to plead to an indictment: s 597C(1). [10], [77]. Where a not guilty plea is entered, the accused is deemed to have “demanded that the issues raised by such a plea or pleas shall be tried by a jury …”: s 604(1). [11]. Importantly the s 560(1)–(2) provides as follows:

“560 Presenting indictments

(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.” [8], [73].

It was observed (per Mullins P and Morrison JA) that there was “only one possible interpretation” of s 560(1)–(2) when read in context with ss 597C(1) and 604(1): a trial begins when the person is arraigned on an indictment signed by an authorised person which is presented to the court and that person enters a plea of not guilty. [8]–[12]. It is not “merely a matter of form” that an accused person is arraigned on an indictment signed by an authorised person and presented to the court. [16]. As was acknowledged by the Court in LT, ss 560(1)–(2) and 597C contain the legal authority for the executive to charge a person on an indictment. [14]–[16].

It was held (per Mullins P and Morrison JA) that the arraignment of the appellant upon a copy of the replacement indictment, which was not “signed personally” by an authorised person in compliance with s 560(2), meant the trial was a nullity (even though the copy was later substituted with the replacement indictment). [17], [111]. Justice Williams reached the same conclusion observing that “in effect there [had] been no trial”. [111]. The procedural irregularity in the conduct of the purported trial in this case was not a matter that could be waived by defence counsel, nor was it open to apply the proviso. [17], [107], [111]. A miscarriage of justice had occurred. [17].

In obiter Mullins P and Morrison JA observed that the trial judge and the prosecutor ultimately proceeded to adopt the course they did on an assumption that the original indictment could not have been amended to correct the error identified with the particulars. [18]. This assumption was mistaken. [18]. The original indictment could have been amended under s 572(2) on the basis that it appeared that “words that ought to have been inserted in the indictment have been omitted”. [18]. Therefore, in circumstances where a prosecutor does not hold a “commission to prosecute”, they are not precluded from amending an indictment in accordance with an order of the trial judge made under s 572(1). [18]. Though, Williams J considered that this case was an inappropriate vehicle to make such a comment, and in any event, there was a risk that judicial comment on such matters may have the effect “blur[ing]” the functions of prosecutor and judge. [76].

Disposition

In the result, the appeal was allowed, the convictions were set aside, and a retrial was ordered. [19], [113].

D Kerr