Director of Public Prosecutions v Foster [2006] QDC 231

DISTRICT COURT OF QUEENSLAND CITATION: R v Foster [2006] QDC 231 PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS (Applicant) v JAMES EDGAR FOSTER (Respondent) FILE NO/S: 10 of 2006 DIVISION: PROCEEDING: Application to extend time to present indictment ORIGINATING COURT: DELIVERED ON: 7 June 2006 DELIVERED AT: Cairns HEARING DATE: 30 January 2006 JUDGE: White DCJ ORDER: CATCHWORDS: COUNSEL: Ms G Meoli for the applicant Mr B Murray for the respondent SOLICITORS: Director of Public Prosecutions Legal Aid Office (Qld) for the respondent [1] On 24 June 2004 the respondent was committed for trial in the Magistrates Court at Cairns in respect of one offence of rape and 11 offences of indecent treatment of child under 16. The complainant in respect of all of these offences is CJA. No indictment has ever been presented 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 -- 1 of 11 -- 2 (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 Prosecution 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.” [2] 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 12 offences. [3] I will firstly set out some relevant history of matters concerning the respondent in the District Court. On 17 May 2002 an indictment was presented in the District court at Cairns charging the respondent with one count of incest, the complainant being LMC, the respondent’s stepdaughter and the daughter of Michelle Louise Clout, the respondent’s former de facto partner. That indictment was presented at the request of the respondent who indicated an intention to plead guilty to it. [4] On 20 June 2002 the respondent was served with three complaints and summons as follows:- Indecent treatment of a child under 16 years (18) Incest (9) The complainant in respect of all of these 27 offences was LMC. On that same day the respondent was served with an additional complaint and summons charging one count of rape and one count of indecent treatment of a child under 16 years. The complainant in respect of those offences was the abovementioned CJA. [5] On 5 November 2002 the respondent’s solicitor wrote to the DPP requesting an ex officio indictment in relation to the substantial group of offences in respect of LMC. The respondent was severely injured in a motor vehicle accident at the beginning of April 2002. As a result of his physical condition following this incident, proceedings in the Magistrates court were substantially delayed. [6] On 4 March 2003 the DPP forwarded a copy of a proposed ex officio indictment to the respondent’s solicitors. The original of that indictment was presented in the District Court at Cairns on 11 March 2004. It charged the respondent and his former de facto partner Michelle Louise Clout with a total of 31 offences of a sexual nature involving three complainants, LMC, CJA and the son of the respondent and Michelle Louise Clout DJF. The 31 offences may be classified as follows:- (a) Respondent and MLC, indecent treatment of a child under 16 LMC - 10 -- 2 of 11 -- 3 (b) Respondent and MLC maintaining LMC - 1 (c) Respondent and MLC indecent treatment of a child under 16 CJA - 1 (d) Respondent and MLC indecent treatment of a child under 16 DJF - 2 (e) Respondent and MLC incest LMC - 2 (f) Respondent alone indecent treatment of a child under 16 LMC - 7 (g) Respondent alone incest LMC - 7 (h) MLC alone permitting child abuse on premises LMC - 1 The single offence on the indictment relating to CJA is not one of the offences for which the respondent was committed on 24 June 2004. [7] Returning to the history of the matter, after the motor vehicle accident in early April 2002 the respondent was an in-patient at the Cairns Base Hospital until November 2002. He was then discharged from hospital to a nursing home. There were ongoing complications resulting from his injuries. On 4 April 2003 the respondent was charged with murder. He was committed for trial on the murder charge on 24 June 2004. He was tried for the murder in the Supreme Court at Cairns in August 2005 and on 26 August 2005 was acquitted. [8] In summary therefore in relation to offences concerning the complainant CJA the respondent has been charged and committed upon 12 offences of a sexual nature. The single offence with which he is charged jointly with Michelle Louise Clout in relation to CJA on the 31 count indictment presented 11 March 2004, is a mystery to me on the evidence which I have. It does not appear to be one of the 12 offences in respect of which he was committed on 24 June 2004. I can find no evidence in the material which tells me if and when he was ever charged with that offence or if and when he was ever committed in respect of that offence. It may be relevant that different solicitors acting for Michelle Louise Clout requested that she be proceeded against by way of ex officio indictment. She pleaded guilty to that count and many of the other counts on the ex officio indictment before me on 2 July 2004 at which time she was sentenced to imprisonment. [9] Ms Meoli who appeared for the DPP on this application, at all material times was the case lawyer in the office of the DPP responsible for all matters concerning the respondent. She bravely takes responsibility for the failure to present an indictment to the court within the time required. By agreement with Mr Murray her explanation for the delay is contained within her written submissions. Mr Murray properly accepts that her account of the relevant events is true. Naturally he makes no concession about the adequacy of the explanation. She says this:- “3.2 One file was made up for the respondent which included all sex matters referred to in the ex officio requests from Legal Aid Queensland. A separate file was made up for the co-accused Michelle Louise Clout. Both these files were prepared by myself and resulted in one ex officio indictment charging both the respondent and Michelle Louise Clout being presented to the District Court on 2 July 2004. 3.4 There were lengthy delays with the sex matters at the request of Legal Aid Queensland due to the respondent’s ill health and also the issue of the Supreme Court trial of murder proceeding first in time. -- 3 of 11 -- 4 3.5 During this time as a result of the ex officio requests I was of the belief that the respondent was pleading guilty to all of the sex matters and going to trial on the charge of murder. I was of the mistaken belief that the committal proceedings only related to the charge of murder and not aware that the respondent was charged with “additional sex related matters” from the bench at the committal proceeding.” I pause here to indicate that this might not be completely accurate. Of the 12 offences in respect of which the respondent was committed on 24 June 2004 two had been charged by way of complaint and summons and the other 10 apparently charged from the bench. Ms Meoli’s explanation goes on:- 3.6 I recall advising the District Court at a number of callovers that the sex matters before the District Court had to wait until the charge of murder was dealt with . In all correspondence with this office, there was never any discussion of any sexual offences going to trial. 3.7 The murder and the “additional sex related matters” were committed to the Supreme and District Court respectively on 24 June 2004. This involved a separate transmission sheet for each matter. 3.8 One file was made up for the murder and the “additional sex related matters” were added to the ex officio file. 3.9 This is not the usual practice of this office. The normal practice is that for every transmission sheet that is received a file number is allocated and a file is made up. There is no explanation why this did not happen on this occasion, other than this office was waiting for the respondent to be committed on a charge of murder. It seems the “additional sex related matters” were wrongly assumed to be the sex matters already in the offence, which had, some time prior to that, been subject of an ex officio request. The complainant CJA in relation to the “additional sex related matters” is also a complainant in the ex officio indictment and the place of offences in relation to the “additional sex related matters”, Bramston Beach is also the place of offences in relation to some of the offences on the ex officio indictment. It is true that count 8 on the 31 count ex officio indictment does allege that that offence against CJA was committed at Bramston Beach. 3.10 I prepared the murder file on the transmission sheet was for the charge of murder (alone). An indictment was prepared, presented in the Supreme Court and that folder given to the allocated prosecutor. 3.11 I had no reason to look at the sex matters because I believed the sex matters were fully prepared and ready to proceed to -- 4 of 11 -- 5 sentence. Similarly no-one else in the office had any reason to review those matters as they were constantly held in abeyance pending the result of the murder trial. 3.12 The “additional sex related matters” did not come to my attention until the first mention of the sex matters after the conclusion of the murder trial with a view to listing those matters. It was at that mention on 16 December 2005 that Barry Murray mentioned that there were some matters which had exceeded the six months indictment presentation date. 3.13 I then returned to my office and discovered a separate transmission sheet and depositions for additional sex related matters with the previously prepared sex matters. [10] This application was filed on 16 January 2006. Subsection 590(3) gives the court a discretion. However before the discretion may be exercised in favour of the applicant the court is required to be satisfied of two things – (a) That good cause is shown, and (b) No miscarriage of justice is likely to result Mr Murray’s first submission is that the subsection requires the applicant to demonstrate that “good cause is shown” for the failure to present an indictment within the time required. I reject this submission. I have no doubt that the explanation for the failure to present an indictment in time will always be relevant to whether or not good cause is shown but I reject the proposition that it is the only factor of relevance. In my view the condition that “good cause be shown” means that good cause be shown to grant the extension of time. [11] I have been referred to no decision binding upon me to support Mr Murray’s proposition. I was referred to a decision of my colleague, His Honour Judge Wall QC, in R v Palmer [2005] QDC 060. In that case the application for leave to present the indictment was made four days after the six months time limit had expired. His Honour refused leave. In his reasons he discussed only the explanation for the delay. He did not expressly refer to any other matters which he might have considered relevant to the question of whether good cause had been shown. It is obvious that His Honour did not consider the explanation for the failure to present an indictment within time to be satisfactory. He did not expressly say that the words “good cause” in subsection 590(3) meant good cause for the indictment not having been presented within the time allowed. [12] A decision of His Honour Judge Wilson SC in DPP v Crawford and Wortley [2005] QDC 105 provides more support to Mr Murray’s proposition. In that case it was submitted on behalf of the DPP that other factors are relevant. At para [13] His Honour said:- “Mr Vasta’s primary contention is that the phrase used in the subsection, “good cause is shown and no miscarriage of justice is likely to result”, should be read as a whole rather than by concentrating on the words “good cause” in isolation. In his submission important issues such as the wider community interest fall to be considered under s 590(3) and the more serious or violent the offence the less onerous the test should be. -- 5 of 11 -- 6 [15] The contention that community interest may be an element in the matters to be considered in determining whether good cause has been shown is novel, and no authority was advanced to support it. On its face the legislation clearly reflects an attempt to balance the rights of an accused person, and the need to protect the interests of the community. [16] That balance the legislature has taken to have intended, is properly reflected in a limitation period of six months. Ordinarily, this is sufficient to allow the Crown time to prepare and present its case, and ensure that both individual and community interests are safeguarded. As the legislation allows applications either before or after the expiry date, it also reflects an appreciation that from time to time the Crown may require an additional period to prepare the matter.” [13] With great respect I disagree with the approach of my learned colleague. In my view the six months provided for in subsection 590(1) cannot be looked upon in the same way as limitation 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. The criminal proceedings under consideration in this case were commenced when the respondent was served with the complaint and summons charging two offences and when he was charged from the bench in respect of the other 10 offences. It must be remembered that apart from a few very limited exceptions the Criminal Code does not provide for any time limitation on the commencement of criminal proceedings. [14] In my view the most apposite analogy to s 590 is rule 389 UCPR which deals with the continuation of a proceeding after delay. So far as is relevant it provides as follows:- “(2) If no step has been taken in a proceeding for two years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made with or without notice.” [15] 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 rule 389. At [2] Her Honour said these factors include:- “(1) How long ago the events alleged in the Statement of Claim occurred and what delay there was before the litigation was commenced. (2) How long ago the litigation was commenced or causes of action were added. (3) What prospects the plain tiff has of success in the action. (4) Whether or not there has been disobedience of court orders or directions. (5) Whether or not the litigation has been characterised by periods of delay. (6) Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant. -- 6 of 11 -- 7 (7) Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity. (8) Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim. (9) How far the litigation has progressed. (10) Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers. (11) Whether there is a satisfactory explanation for the delay. (12) Whether or not the delay has resulted in prejudice to the defendant, leading to an inability to ensure a fair trial. [16] It is obvious that these factors expressly apply to a civil action. They cannot be applied verbatim to criminal proceedings. However they show that it is not only the explanation for no step having been taken for two years which bears upon the exercise of the discretion. For instance, if the only consideration is the explanation for failing to present an indictment within six months then it would not matter whether the application was made two days or two years after the six month period had expired. Such an approach in my view unduly fetters the discretion granted by subsection 590(3) and is in no way justified by the plain and ordinary meaning of the section. It is not just the six month period which is there for the protection of the accused person. Even if the court is satisfied that good cause has been shown to grant the extension of time, it still may not do so unless it is also satisfied that no miscarriage of justice is likely to result. That must also be an important safeguard to protect the interests of the accused person. Finally, in my view, whilst inefficiencies and mismanagement in the administration of the Office of the Director of Public Prosecutions which might lead to an indictment not being presented within time, should not be ignored or readily forgiven or excused, the interests of justice require a much wider consideration. [17] The interests of justice require that people who might be guilty of a very serious offence be prosecuted so that if they are found guilty of the offences they are appropriately punished. It is not without relevance in my view that s 590 deals with a situation necessarily arising after and out of committal proceedings. That means that a duly constituted court has reached a determination on evidence that a defendant has a prima facie case to answer. It is always open to a respondent to an application such as this to put the depositions before the court to attempt to demonstrate that the evidence is very weak and that a conviction is unlikely. That has not been done in this case. There is no doubt that the respondent is presumed to be innocent until proved guilty. However, that is a presumption of law. As a question of fact and only for the purposes of an application such as this, in my view the court should take into account the fact that a respondent has been committed for trial in respect of the relevant offences and in those circumstances one of the interests of justice favours that he should be tried for them so that his guilt or otherwise can be properly determined. [18] I will list some of what I consider to be the factors relevant to being satisfied that good cause is shown to grant the extension of time – -- 7 of 11 -- 8 A. When the alleged offences are said to have occurred and the lapse of time between when they are alleged to have occurred and when the respondent was first charged. B. The delay between when 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. F. The delay after the expiry of the six months in 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. [19] It may be observed that subsection 590(4) specifies the particular matter, the relief from which is the purpose of the section namely “the consequences of his or her committal”. Such consequences were explained by Thomas J in Re Jenkin(1994) QdR 166, 268 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.” [20] In my view the gravity of the consequences of a committal to a respondent is an important factor to be weighed up with other relevant factors in deciding whether or not the discretion to extend the time for presenting an indictment should be exercised. For instance, if a respondent was remanded in custody at committal awaiting the presentation of the indictment, that would be a very strong factor in favour of refusing the extension of time in a case where the DPP had been dilatory. If the respondent was released on bail on his own recognizance after committal the factor might not be given much weight. -- 8 of 11 -- 9 [21] In submissions it was suggested by Ms Meoli that if an extension was refused the respondent could be recharged with the relevant offences, and if necessary committed again for trial. Mr Murray submitted that this was irrelevant. However, that was as I understand it, based upon his primary submission, the term “good cause is shown” relate only to the reason for the failure to present an indictment within the required time. I have no doubt that in some cases the ability of the police to charge the respondent with the offences again may be an irrelevant factor. The majority judgments in Jenkins case referred to above are worthy of examination in respect of this issue. Under consideration in that case was the previous s 590 of the Criminal Code. So far as is relevant subsection 590(3) provided as follows:- “Where a person committed for trial who has 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.” The trial judge Kneipp J and Thomas J on appeal considered that the word “discharged” meant that the defendant was discharged in respect of any further prosecution for the offence. However, the majority Ryan and Mackenzie JJ were of the view that the term “discharged” meant “discharged from the consequences of committal”. It must also be remembered that subsection 590(2) covers a number of situations other than a situation where an indictment is not presented within the time required by subsection (1). For instance, if the further delay in the presentation of an indictment appeared likely to be lengthy an the consequences of the committal constituted a significant curtailment of the respondent’s ability to go about his life with a reasonable level of freedom, the discretion might be exercised to refuse the extension of time, but that would not prevent the respondent from being recharged and perhaps recommitted with the relevant offences. [22] Just as it might be relevant to a civil case (refer item 8 in the list of Atkinson J above) if a limitation period for the commencement of proceedings has not yet expired it might be pointless to strike out the claim if the litigation can be commenced all over again by the filing of a new claim and statement of claim. In a criminal proceeding it might be pointless to exercise the discretion to grant an extension of time in such a way as to relieve a defendant from the consequences of committal if within a relatively short space of time he was likely to be recharged and again brought before a Magistrates Court. [23] I turn now to consider the relevant factors in this particular case. The reason for the failure to present an indictment within six months of the committal was the mistaken belief by the clerk who received the transmission sheet on committal that the offences referred to therein were already included in the ex officio indictment which had been presented to the court on 11 March 2004. It must be said that had that clerk compared the description of the offences contained in the transmission sheet with the offences charged in the ex officio indictment she should have realised that that was not the case. The mistake was therefore a careless one. The time for the presentation of an indictment expired on 24 December 2004. Therefore approximately 13 months expired before this application for an extension of time was filed. [24] The delay in my view is of little consequence. Even if an indictment had been presented within time it seems likely that it would not have been proceeded with until the murder proceedings in the Supreme Court were disposed of. That occurred -- 9 of 11 -- 10 at the end of 2005. Further, there is no suggestion that the delay led either the respondent or his solicitors to mistakenly believe that the Director of Public Prosecutions may not have intended to proceed in respect of the offences. The offences were alleged to have been committed on unknown dates between 31 December 1995 and 1 January 1997. As I have indicated the respondent was charged with two of the offences by complaint and summons served on the respondent on 20 June 2002. He was charged with the remaining offences from the bench at the committal proceedings on 6 May 2004. [25] I consider the delay between the dates upon which it is alleged the offences were committed and the commencement of criminal proceedings to be substantial. There is no explanation available on the evidence for that delay. It may simply be that there was a delay before the matter came to the attention of police. On the other hand, there is nothing to suggest any prejudice to the respondent by reason of that delay or, for that matter, any further delays up to the time that this application was filed. The charges are serious. The exact particulars of the indecent treatment offences are not known. But there is one offence of rape in relation to the same complainant. There is a repetition of offending alleged. In my view it may be fairly said that the conduct, the subject of the offences, is therefore seriously criminal. There is no evidence one way or the other about the strength of the prosecution case. However the Magistrates Court has, after a hearing, concluded that there is at least a prima facie to answer. In my view therefore the interests of justice require that the respondent be tried in respect of the offences with which he is charged. The mistake in the office of the Director of Public Prosecutions should not be excused. However in my view the interests of justice in having the charges dealt with and disposed of according to law outweigh the culpability of the mistake made in the Office of the Director of Public Prosecutions. [26] In my view the consequences to the respondent of the committal on 24 June 2004 were of no practical effect. As the transmission sheet on committal demonstrates the respondent was granted bail on his own undertaking with the same conditions as Supreme Court bail in respect of the murder charge. He is still on bail in respect of the sexual offences for which he was committed, on his own undertaking. He is still before the District Court in respect of the ex officio indictment presented on 11 March 2004 and is on bail on his own undertaking in respect of that matter. He is on bail on his own undertaking in respect of the ex officio indictment charging the one count of incest. [27] The Director of Public Prosecutions is after a very brief extension of time and will present an indictment to the court very soon after an extension of time is granted, if it is granted. Unless some other factor suggests that the application for an extension of time should be refused it seems to me that no useful purpose would be served by refusing the extension of time. There would be no material benefit to the respondent, even if he were relieved of the consequences of the committal in respect of the 12 offences of a sexual nature upon which he was committed on 24 June 2004, he would not be completely relieved of bail obligations which in any event are not particularly burdensome. If he was recharged then it would take considerably longer for him to come to trial in respect of those 12 offences than it would if the DPP were simply granted the short further extension which it seeks. -- 10 of 11 -- 11 [28] I am therefore satisfied that good cause is shown to grant the extension of time sought. I am also satisfied that no miscarriage of justice is likely to result. I will fix the period of the extension allowed when I publish these reasons. -- 11 of 11 --