DPP v Cicolini & Anor [2007] QDC 214

DISTRICT COURT OF QUEENSLAND CITATION: DPP v Cicolini & Anor [2007] QDC 214 PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS (applicant) v SHARYN LOUISE CICOLINI (First Respondent) CLIFFORD ROGER CICOLINI (Second Respondent) FILE NO/S: DIVISION: PROCEEDING: Application to extend time to present an indictment ORIGINATING COURT: DELIVERED ON: 20 April 2007 DELIVERED AT: Cairns HEARING DATE: 29 March 2007 JUDGE: White DCJ ORDER: That the time for presentation of an indictment in respect of the offences upon which the respondents were committed on 10 April 2006 in the Magistrates Court at Cairns be extended to Friday, 4 May 2007. CATCHWORDS: COUNSEL: Mr M Connelly for the applicant Mr T D Martin SC for the respondents SOLICITORS: Director of Public Prosecutions for the applicant Ryan & Bosscher solicitors for the respondents [1] On 10 April 2006 the first respondent was committed to the District Court at Cairns for trial in respect of the following offences:- A. Fraud where property is valued at $5,000 or greater 13/3/2002 at Atherton B. Attempt to dishonestly obtain a property at Atherton on 9/2/2002 C. Perjury at Cairns on 20/5/2002 D. Perjury at Cairns on 20/5/2002 E. Perjury at Cairns on 29/5/2002 F. Perjury/contradictory statements at Cairns between 19/5/2002 and 8/8/2002 G. Use of fabricated evidence at Cairns on 29/5/2002 -- 1 of 9 -- 2 [2] The second respondent was committed for trial on 10 April 2006 to the District Court at Cairns on the following offences:- A. Fraud – where property yield is valued at $5,000 or greater at Rockhampton on 23/7/2002 B. Having in possession an animal with defaced brand 12/3/2002 – 20/7/2002 C. Stealing stock at Laura 12/3/2002 – 20/7/2003 D. Stealing stock at Laura 12/3/2002 – 20/7/2003 E. Stealing stock at Laura between 12/3/2002 and 20/7/2003 F. Stealing stock at Laura 12/3/2002 – 20/7/2003 G. Fraud – property valued at $5,000 or greater at Atherton on 13/3/2002 H. Attempt to dishonestly obtain property at Atherton 9/2/2002 I. Perjury at Cairns 20/5/2002 J. Perjury at Cairns 20/5/2002 K. Perjury at Cairns 29/5/2002 L. Fabricating evidence 12/3/2002 – 30/5/2002 at Cairns M. Use of fabricated evidence Cairns on 29/5/2002 N. False declaration at Ipswich on 27/5/2002 [3] No indictment has yet been presented in the District Court in respect of these offences. Section 590 of the Criminal Code provides as follows:- (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 trial for the offence, the Director of Public Prosecutions or a Crown Prosecutor must present the indictment no later than six 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. [4] This is an application by the Director of Public Prosecutions for an extension of time in which to present an indictment in respect of the aforementioned offences. -- 2 of 9 -- 3 [5] An affidavit by Sen. Sergeant Grant Wynne-Jones of the Cairns Police Prosecution Corps sets out the history of his dealings with the matter. As may be observed from the list of charges set out above offences were alleged to have been committed at various places in Queensland and this involved a number of different investigating policed officers. There was also a co-accused, Barbara Noelene Maxwell in respect of the offence of dishonestly gaining a benefit at Rockhampton between 9/7/2002 and 23/7/2002. I have no difficulty drawing the conclusion from Sgt Wynne-Jones’ evidence that the overall proceedings against the respondents and Maxwell were complicated. They also took some considerable time. The first day of the committal hearing was 28 February 2005 and as may be observed those proceedings were not completed until 10 April 2006. It appears that a significant number of prosecution witnesses were required for cross-examination by counsel for the respondents. [6] Committal proceedings were somewhat complicated by the fact that although Maxwell was a co-accused in relation to one offence, her committal proceedings were progressing separately. Further, although the formal order committing the respondents for trial was made on 10 April 2006 no transmission sheet on committal, depositions in relation to the respondents, and exhibits in relation to the respondents appear to have been released by the Magistrates Court until after Maxwell’s committal on 27 September 2006. [7] Tracey Marie Van Eden, a listing officer employed by the applicant in its Cairns office, has sworn an affidavit in support of the application. I generally accept what she says. ON the basis of her affidavit I am satisfied that the transmission sheet on committal and depositions were not sent to the Office of Director of Public Prosecutions by the Magistrates Court until after the committal of Maxwell and arriving in the Officer of the Director on 3 October 2006. This was still within the six months period for the presentation of an indictment against the respondents, although only just. There has been further delay and this application was filed on 26 March 2007. I am not prepared to draw the inference that anyone in ODPP was consciously aware that the respondents had been committed on 4 April 2006. What is of concern to me is that the ODPP should have been aware of the committal and that it occurred on 4 April 2006 upon the arrival of the transmission sheets, had they been properly examined. On the other hand in my experience the usual practice of the Magistrates Court when a person is committed is to send a transmission sheet and depositions to the District Court and to the ODPP very soon afterwards. I therefore think it quite possible that whoever received the transmission sheet on committal in relation to the respondents would also have received the transmission sheet on committal in relation to Maxwell, against the background of the usual practice. That person might have assumed that the ODPP had a little less than six months to present an indictment. I accept Ms Van Eden’s evidence that it was not until the names of the respondents appeared on the callover list of the District Court in November 2006 that she was alerted to the fact that the committal of the respondents had taken place much earlier in April 2006. [8] It is necessary now to look at s 590(3). In my view what is required for an extension of time to be granted are as follows:- (a) That “good cause is shown”; and (b) No miscarriage of justice is likely to result. -- 3 of 9 -- 4 [9] Firstly, I reject any suggestion that the first requirement is intended to mean that good cause is shown for the failure to present the indictment within the six month period. I have no doubt that the explanation for the delay in presenting the indictment will always be relevant to the exercise of the judicial discretion, in some extreme circumstances it may even be decisive, but that all relevant factors need to be considered by the Court in deciding if it is “satisfied that good cause is shown to grant the extension of time”. [10] In my view the six months provided for in subsection 590(1) cannot be looked upon in the same way as limitations periods provided for in the Limitation of Actions Act 1974. The presentation of an indictment in the District Court does not mark the commencement of the criminal proceedings against an accused person. Criminal proceedings against the respondents were commenced when they were arrested or served with a Complaint and Summons charging the offences. It is not clear to me which process was followed in commencing proceedings in this particular case. Further, apart from a few very limited exceptions, the Criminal Code does not provide for any time limitation on the commencement of proceedings. [11] In my view sensible discussion of the factors which may be potentially relevant in considering an application for an extension of time can only be undertaken after an examination of the relief to which a respondent is entitled if the indictment is not presented within the six month period and no extension of time is granted. That relief is expressly stated in subsection 590(4) as “the consequences of his or her committal”. In my view the relief from the consequences of committal do not include relief from prosecution or further prosecution. Prior to taking on its current form s 590 relevantly provided as follows:- “590. Right to be tried (1) A person committed for trial before any court for an indictable offence may orally or in writing at any time during any sittings of the court held after his committal make application to the court to be brought to his trial. … (3) Where a person committed for trial who is made application pursuant to subsection (1) is not brought to trial by the last day of the sittings of the court next following the sittings during which the application was made, he is entitled to be discharged. In Re Jenkin 1994 1 QdR 266 the question arose as to just what it was that a person committed for trial was “entitled to be discharged” from. In that case the respondent was charged with murder. She was committed for trial on 2 October 1990. The Crown had taken no steps to present an indictment to the Supreme Court in Townsville. The respondent made an application pursuant to the then subsection 590(1). She was not brought to trial within the requirements of subsection 590(3). The question came on before Kneipp J on the respondent’s application that she be discharged from further prosecution. Kneipp J granted the application and ordered that the respondent be discharged from prosecution in respect of the offence of murder. The Crown appealed. [12] The issue before the Full Court (Thomas, Ryan and Mackenzie JJ) was whether the respondent had been entitled to discharge from further prosecution or discharge from the consequences of committal. Plainly, if being discharged from the consequences of committal included being discharged from further prosecution -- 4 of 9 -- 5 there was no issue. It was only if there was a distinction to be made between the two that there was any issue for the Full Court to decide. In the judgment of Thomas J at p 268 his Honour described “the consequences of committal” as follows:- “During the period between shortly after arrest and committal for trial the person charged is subject to the jurisdiction and protection of the courts, and primarily the Magistrates Court. In due course the criminal jurisdiction of the court to which the person is committed for trial is enlivened by the presentation of the indictment (Jago v District Court of New South Wales (1989) 168 CLR 23, 36; R v His Honour Judge Noud ex parte McNamara (1991) 2 QdR 86, 99). Once the court is seized of such criminal proceedings it has control of them (Jago at 56) and the accused person is under the jurisdiction and protection of the Supreme or District Court. However between committal and the time when the Crown choose to present an indictment, there is a period of limbo. The charged person is either in prison or subject to conditions of release on bail. He is in the hands of the Executive, subject only to his rights to bring particular applications to a court such as an application for bail, or if necessary habeas corpus.” [13] It is quite clear from the judgments of Ryan and Mackenzie JJ that they took the same view as that of Thomas J as to the consequences of committal, although they did not expressly say so. Ryan J expressed the view as follows:- “In my opinion the appeal should be allowed. The order appealed from should be varied by deleting from it the words “from further prosecution”, and inserting in their place the words, “from the consequences of her committal for trial”. Mackenzie J, giving comprehensive separate reasons, agreed with that proposal. Thomas J on the other hand concluded that the word “discharged” in s 590(3) as it then stood, meant discharged from further prosecution. Since the section has now been repealed the opinion of Thomas J as to the matter to which the word “discharged” referred, is of no consequence. But what remains is a unanimous authoritative statement as to the meaning of the expression “the consequences of committal”. So far as I am aware it has never been overturned and is therefore binding. It is also tolerably clear that the new section 590 was inserted as a response to the ambiguity of the former section 590 criticised in the judgments in Jenkin’s case. The section was amended in 1997. Therefore, in my view, the legislature made a positive decision to pick up the expression “entitled to be discharged from the consequences of his or her committal” rather than entitled to be discharged from further prosecution. In my view, there is a clear legislative intent that a failure to present an indictment within time, or an extension of such time is not granted, was not to result in discharge from prosecution. [14] If further prosecution is not included in the expression “the consequences of committal” and accepting that there is no limitation period upon the commencement of criminal proceedings, it seems to me that at least prima facie there is no reason why if an extension of time to present an indictment was not granted, the police could not simply re-arrest a defendant. This of course may give rise to issues of abuse of process but if the re-arrest was an abuse of process the consequence would be a permanent stay of proceedings. -- 5 of 9 -- 6 [15] In my view the presentation of an indictment subsequent to committal is a step in the criminal proceeding rather than the commencement of the proceeding. Therefore, when considering whether or not to grant an extension of time to present an indictment (i.e. take a step in the criminal proceeding) it may be useful to draw an analogy between an application for leave to take a step in a civil proceeding when no step has been taken within the required time. In Tyler v Custom Credit Corp Ltd (2000) QCA 178 Atkinson J, with whom McMurdo P and McPherson JA agreed, set out a non-exhaustive list of 12 factors to be taken into account in determining whether the interests of justice require the case to be dismissed under r 389. I will not set out those factors because the way they are expressed make them clearly inapplicable to criminal proceedings. However, they give a general flavour to the sorts of factors relevant to exercising a discretion to allow a further step in the action. [16] In Jago v District Court (NSW) (1989) 168 CLR w23 the High Court was concerned with the appropriateness of a stay being granted after a long delay on the part of the prosecution in moving a case forward. At p 33 Mason CJ said:- “A test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial. At the same time it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings, cannot be precisely defined in a way which will cover every case but they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and of course the prejudice suffered by the accused…In any event a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare.” [17] In R v Foster District Court Cairns, Criminal Application No. 10 of 2006 (unreported) I dealt with an application to extend time to present an indictment. I expressed views similar to the above and I have not changed them. I set out the following list of some of the factors relevant to being satisfied that good cause is shown to grant the extension of time:- A. When the alleged offences are said to have occurred and the lapse of time between they are alleged to have occurred and when the respondent was first charged. B. The delay between the respondent was charged and when the respondent was committed for trial in respect of the offences and if the time is of considerable length any explanation for the delay. C. The strength of the prosecution case. D. Whether there have been delays in proceedings and whether the delays can be attributed to the conduct of the prosecution, the defendant or external causes. E. The reason for the failure to present an indictment within the required six months. -- 6 of 9 -- 7 F. The delay after the expiry of the six months and the making of the application for the extension of time. G. The reason for the delay in making the application for the extension of time. H. Whether the delay has occasioned any prejudice to the respondent. I. The consequences of the committal to the respondent. J. Whether the refusal of the extension will bring an end to criminal proceedings. To these I would now add the public interest in the disposal of the charges on the merits. [18] Mr Martin referred me to the judgment of the Court of Appeal in R v Foley (2002) QCA 522. On 13 July 2001 the applicant was committed for trial for an offence of assault occasioning bodily harm on 15 November 2000. On 5 February 2002 an officer of Director of Public Prosecutions applied to the District Court pursuant to s 590 of the Criminal Code for an extension of time within which to present an indictment charging the applicant with that offence. The then Chief Judge of the District Court refused to extend time within which to present the indictment. On 12 February 2002 the DPP sought to present an ex officio indictment in respect of the same charge. The primary question before the court was whether or not that ex officio indictment was regularly presented. For reasons which have nothing to do with the present case the court declared that the ex officio indictment had not been presented. However, the court took the view that it appeared likely that the Director of Public Prosecutions would attempt to present a regular ex officio indictment and went on to declare as follows:- “That no ex officio indictment may be presented charging the applicant with the offence the subject of the indictment referred to in 1.” [19] Mr Martin submitted that even if, technically, the accused could be re-arrested for the offences, it would be almost inevitable that proceedings would be stayed for abuse of process. I accept that might be possible in some circumstances, but it would be by no means inevitable. [20] In the very brief reasons given by the court for making the second order the judgment suggested that the reason for the amendment and therefore the purpose of the current s 590 was to bring about a speedy resolution of the criminal proceedings. However, in my respectful view that was not the reason for the court making the second declaration above. The court made no finding that the presentation of an ex officio indictment in those circumstances amounted to an abuse of process. Rather, the court concluded simply that the circumstances in which the DPP could present an ex officio indictment pursuant to s 561 did not include the circumstances of that case. Rather, the DPP could only present an indictment charging the respondent with the relevant offence if it obtained an extension of time pursuant to s 590. I would not disagree with that view as a matter of statutory construction. It would not matter if I did. It is a question of law and the decision is binding upon me. [21] The Court of Appeal in Foley’s case did not consider whether or not the respondent could have been re-arrested in respect of the relevant offence, taken before a Magistrates Court, committed for trial to the District Court, and a new indictment presented to the District Court as a consequence of that committal. Further, whilst I -- 7 of 9 -- 8 accept that one of the purposes of s 590 is to progress criminal prosecutions expeditiously, I do not accept that it is its primary purpose. In my view the purpose of s 590 is to protect a person who has been committed for trial and is therefore under the supervision of the Executive with very limited right to protection from the courts from the consequences of committal. In some circumstances those consequences could be quite grave, particularly if the defendant has been refused bail and is in custody on remand. That would be even more so if the circumstances of the alleged offence were such that even if convicted the defendant would not be likely to be sentenced to imprisonment at all or at least no more than a short sentence of imprisonment. [22] I consider that the failure to present any indictment against the respondents by 4 October 2006 was careless but the complexities of the cases, the involvement of the co-accused Maxwell and the fact that the ODPP did not receive the transmission sheets on committal and depositions until a few days before the six months expired makes the explanation for the failure to present the indictment within the six months period satisfactory. The further delay in my view is unsatisfactory because no explanation is offered as to why, after learning in November 2006 that the respondents had been committed on 4 April 2006 and the six months had expired, the ODPP did not proceed with greater expedition. On the other hand the delay in making the application was not so great as to lead to any suspicion of deliberate delay or delay motivated by malice towards the respondents. In my view, the explanation for the delay is unsatisfactory but the surrounding circumstances are not so serious as to lead me to conclude that the delay is of any great significance in considering the discretion to grant an extension of time. [23] In my view what is of greater significance is the interest of justice in having the offences dealt with on their merits as expeditiously as possible. That will be achieved by granting the Director of Prosecutions an extension of time so that if there is any further delay the proceedings will be under the control of the District Court. There is not the slightest suggestion that the delay has caused any prejudice or inconvenience to the respondents. They are on bail in their own undertaking. There is no suggestion of any onerous conditions of bail being imposed. In reality the only requirements that the respondents have to comply with is to appear when required by the Director of Prosecutions after the presentation of an indictment and to notify the Director of Prosecutions of any change of address. [24] Whilst I have no information concerning the circumstances of the offences charged, there is no suggestion that they are not serious. In particular the offences of perjury and fabricating evidence would usually be considered serious because they strike at the heart of the justice system. In my view that adds to the importance of the interests of justice as a factor to be taken into account. Finally, it appears that there have been extensive committal proceedings with a variety of witnesses giving oral evidence and having been cross-examined. A duly constituted court determined that the respondents had a case to answer in respect of all of the offences with which they are charged. There is no suggestion that such a view on the part of the Magistrates court was wrong. The respondents have not sought to make submissions that the case against them is weak. Weighing up these various factors I am satisfied that good cause has been shown to grant the applicant an extension of time. -- 8 of 9 -- 9 [25] As to the second requirement that no miscarriage of justice is likely to result, there is no evidence that that is likely to be the case and Mr Martin has made no submissions in relation thereto. I am satisfied that no miscarriage of justice is likely to result. I will order that the time for presentation of an indictment in respect of the offence upon which the respondents were committed on 10 April 2006 in the Magistrates court at Cairns be extended to Friday, 4 May 2007. [26] Before concluding I wish to say something about the way in which the ODPP deals with the presentation of indictments following committal. In my experience generally, the Cairns Office presents indictments within the six months period in the overwhelming majority of cases. However, there are occasions when the six months expires before the indictment is presented. This is not the first time I have had to deal with an application by the Director of Public Prosecutions for an extension of time. In the majority of cases the interests of justice and the absence of prejudice will usually far outweigh any unsatisfactory explanation for the delay. However, in my view, this is no excuse for the ODPP for failing to institute appropriate systems of checks and balances to ensure so far as is possible that indictments are presented within time. There may be such appropriate systems. However, I was certainly not told about any such system in this case. And in the absence of any such explanation, I get the distinct impression that there is not such a system. In my view, a central registry of transmission sheets on committal is a minimum requirement. There should also be a system whereby somebody is responsible for checking, perhaps three months after the receipt of the transmission sheet and thereafter on a monthly basis until the indictment is presented. I do not purport to be making any attempt to describe the definitive form of such a system, but in my view there should be one. If no such system exists then there may came a time on an application like this that a judge will take the view that the prolonged failure of ODPP to introduce such a system may make a failure to present an indictment within the six month period much more serious than might otherwise be the case. If there is such a system then the Court should be told about it on an application such as this, with an explanation about how it failed. -- 9 of 9 --