Consent Timing Upheld in Conspiracy Charges

The NSW Supreme Court dismissed an application to quash an indictment on the grounds that the consent of the Director of Public Prosecutions was obtained after the initial Court attendance notice was issued. The court held that the timing of consent did not render the proceedings invalid.

OUTCOME: Dismissed

New South Wales Supreme Court

CITATION : [NAME_1] ([NAME_1]) v [NAME_2] [No 5] [2008] NSWSC 728

HEARING DATE(S) : 18/03/08

JUDGMENT DATE : 19 March 2008

JURISDICTION : Criminal

JUDGMENT OF : Whealy J at 1

DECISION : Application to quash indictment dismissed.

CATCHWORDS : CRIMINAL LAW - Practice and Procedure - Indictments - Consent to commence proceedings for conspiracy - time of commencement of proceedings - Criminal Code Act 1995 (Cth), s 11.5(8)

LEGISLATION CITED : Criminal Procedure Act 1986 (NSW) (CPA) Director of [NAME_3] Act 1983 (Cth)

R v Janceski [2005] NSWCCA 281; [2005] 64 NSWLR 10 R v Michael Taylor [2003] NSWCCA 194 R v [NAME_4]; R v Dellapatrona (1992) 28 NSWLR 68 CASES CITED : R v Butler (1991) 24 NSWLR at 66 R v Hull (1989) 16 NSWLR 385 [NAME_5] (1991) 52 ACR 65 Tasker v Fulwood (1978) 1 NSWLR 20 at 23 and 24

[NAME_1] ([NAME_1]) v [NAME_6] [No 5] [NAME_1] ([NAME_1]) v [NAME_7] [NAME_1] ([NAME_1]) v [NAME_8] [NAME_1] ([NAME_1]) v [NAME_9] PARTIES : [NAME_1] ([NAME_1]) v [NAME_11] [NAME_1] ([NAME_1]) v [NAME_13] [NAME_1] ([NAME_1]) v [NAME_15] [NAME_1] ([NAME_1]) v [NAME_7] [NAME_1] ([NAME_1]) v [NAME_17](S) : SC 2007/2397001; 2007/2395001; 2007/2398001; 2007/2399001; 2007/2400001; 2007/2452001; 2007/2454001; 2007/2396001; 2007/2455001

[NAME_19]; G Bellew SC; C O'Donnell; [NAME_20] [NAME_21]; R. [NAME_22]; [NAME_23] [NAME_24] R Button SC; [NAME_25] [NAME_26] COUNSEL : [redacted] Ms D. [NAME_28]; [NAME_28] [NAME_53]; . [NAME_29] [NAME_14] Mr. G. [NAME_30] SC; [NAME_30] [NAME_16] [NAME_31]; [NAME_33] [NAME_35]; [NAME_36] [NAME_51] - [NAME_37] - [COMPANY_38] [NAME_24] [NAME_39] [NAME_26] SOLICITORS : [redacted] Legal Aid Commission - [NAME_12] [NAME_41] [NAME_14] [NAME_42] - [COMPANY_56] [NAME_16] [NAME_43] [NAME_18]

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

WHEALY J

PARRAMATTA: WEDNESDAY 19 March 2008

2007/2397001 - [NAME_1] v [NAME_6] [No 5] 2007/2395001 - [NAME_1] v [NAME_7] 2007/2398001 - [NAME_1] v [NAME_8] 2007/2399001 - [NAME_1] v [NAME_9] 2007/2400001 - [NAME_1] v [NAME_11] 2007/2452001 - [NAME_1] v [NAME_13] 2007/2454001 - [NAME_1] v [NAME_15] 2007/2396001 - [NAME_1] v [NAME_7] 2007/2455001 - [NAME_1] v [NAME_57] - Application to Quash Indictment as a nulity

1 HIS HONOUR: Yesterday, I gave a lengthy decision dealing with the validity or otherwise of the indictment presented in these proceedings. One of [NAME_44], [NAME_7], through his lawyers, sought leave to file a notice of motion in which one urgent matter was pressed for immediate decision. I gave [NAME_45] of counsel permission to file the motion dated 14 March 2008 and yesterday heard submissions on the point in issue. 2 The urgent aspect of the motion filed on behalf of [NAME_7], seeks the following order: "(1) An order that the indictment be quashed on the ground that the Crown failed to obtain, prior to commencement of the proceedings, the consent of the Commonwealth Director of [NAME_46] [NAME_3], as required by section 11.5(8) of the Criminal Code." 3 So far as I can ascertain, this motion is not actively pursued at present by any of the other accused. It obviously has general application, but, as I say, it seems that the argument is not necessarily favoured by all counsel for [NAME_44]. 4 The terms of the indictment, the relevant legislation and aspects of the Crown case, will be found in the extensive judgment I gave yesterday. I will not repeat those matters in this judgment. I will, however, set out again the provisions of s 11.5(8) of the Code. It is in the following terms: "Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of [NAME_46] [NAME_3]. However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with an offence of conspiracy before the necessary consent has been given."

CHRONOLOGY 5 The factual events relevant to the present proceedings are agreed as follows:

(a) [NAME_44] with the exception of [NAME_14], were arrested and charged on 8 November 2005;

(b) [NAME_14] was arrested and charged on 20 December 2005;

(c) A Court attendance notice was also issued on 8 November 2005;

(d) There was an amended Court attendance notice dated, I understand, either on or before 23 January 2007. It "amended" the terms of the offence. (This document was not in evidence before me);

(e) A written consent under s 11.5(8) to proceedings for an offence of conspiracy was signed by the then Director of [NAME_46] [NAME_3], [NAME_47], on 28 February 2007;

(f) The committal proceedings commenced on 5 March 2007;

(g) [NAME_44] were committed to stand trial on 30 April 2007;

(h) [NAME_44] were arraigned before the Supreme Court on 31 May 2007.

(i) An indictment, in the same terms as the offence referred to in the DPP's consent, was presented at the arraignment; and each accused pleaded not guilty to the charge in the indictment;

(i) The trial of [NAME_44] was then set down for hearing to commence on 25 February 2008. 6 I should add that the DPP's consent became exhibit 1 in the committal proceedings. It was not tendered before me in relation to this argument, but it is in my possession and I have marked it "1" for identification in case its contents need to be scrutinised. No argument was raised in relation to the form of the consent and its adequacy as a consent to the charge in the indictment. The issue turned upon the timing of the consent, not its content.

SUBMISSIONS ON BEHALF OF [NAME_44] 7 [NAME_45], on behalf of [NAME_7], has submitted that it was incumbent upon the Crown to obtain the consent of the Commonwealth Director of [NAME_46] [NAME_3] before commencing proceedings. The further submission is made that the Crown failed to obtain the consent prior to commencing proceedings and that, accordingly, the indictment should be quashed forthwith, since any further proceedings are a nullity. 8 [NAME_45] argued that the manner and timing of the commencement of proceedings in New South Wales is relevantly governed by the Criminal Procedure Act 1986 (NSW) (CPA). 9 Counsel's central submission was that all criminal proceedings in this State must now be commenced by way of a Court attendance notice (CAN). This was said to derive from ss 47 (dealing with committal proceedings) and section 172 (dealing with summary offences). 10 [NAME_45]'s next step, however, was to argue that s 53 of the CPA was of general application and not confined to committal proceedings. That section is in the following terms: "When proceedings commence: 53(1) all proceedings are taken to have commenced on the date on which a Court attendance notice is filed in the Registry of a relevant court in accordance with the Division; (3) nothing in this section affects any other Act or law under which proceedings are taken to have commenced on another date." 11 [NAME_45] submitted that, in relation to all proceedings for an indictable offence, they are now to be taken to have commenced on the date the first Court attendance notice relating to the offence is issued. [NAME_45] submitted that, since the original CAN notice was issued on 8 November 2005, the DPP's consent was given after that date, with the consequence that the entire proceedings are to be regarded as a nullity. 12 [NAME_45] drew the Court's attention to a number of decisions where legislation, admittedly in rather different terms, has been commented upon by Courts confronted with the type of problem thrown up by the present submission.

RESOLUTION OF THE ISSUES 13 At the outset I am unable to accept [NAME_45]'s submission concerning the reach of s 53 of the CPA. In my opinion, a proper reading of ss 47(1), 48, 49(1) and 53 demonstrate that s 53 itself is dealing with a Court attendance notice for committal proceedings and not generally. 14 Secondly, the provisions of the CPA dealing with indictable offences and the commencement of proceedings in relation to those offences are to be found in Chapter 3, Part 3, of the legislation. This is a completely separate area from Division 1, Part 2 of Chapter 3. 15 Thirdly, the provisions of the CPA dealing with the commencement of proceedings for an offence that is to be dealt with summarily are to be found in Chapter 4, Part 2, of the legislation. There, s 178 "mirrors" s 53 but does so in relation to offences dealt with in Chapter 4. For example, s 178 uses the words "all proceedings", but, like s 53, this expression is read down by the remainder of the section and its context. Chapter 4, for example, deals with "summary offences". As a consequence of these matters, s 53 of CPA cannot be interpreted in the way contended for by [NAME_45]. 16 The crux of the present argument is, however, said by [NAME_45] to be the proper construction of the relevant phrase in s 11.5(8) of the Code: "Proceedings for an offence of conspiracy must not be commenced without the consent of the Director of [NAME_46] [NAME_3]." 17 But more critically, it seems to me that the real issue confronting this Court is whether the present indictment should be quashed on the basis that the proceedings on indictment are themselves a nullity. To my mind, this issue will not be determined by examining whether the committal proceedings were irregular or invalid, based on the absence of a consent at the time the committal proceedings were taken to have commenced or earlier. I shall explain why this is so. First, although Chapter 3 of the CPA deals with indictable procedure, s 53 appears in Division 1 of Part 2 of the Chapter. It is, as I have said, a division dealing with the commencement of committal proceedings and other matters relating to committal proceedings. This is made clear by the headings and context of the sections I have mentioned. Secondly, this Court's jurisdiction to deal with criminal proceedings has been the subject of recent decisions in the [ADDRESS] of Criminal Appeal. I had occasion recently to consider these decisions in a preliminary argument relating to a proposed fitness hearing for one of [NAME_44] in the present trial, [NAME_7]. This in turn led me to a consideration of s 121 of the CPA and of s 130 of the same legislation. One of those authorities was R v Janceski [2005] NSWCCA 281; [2005] 64 NSWLR 10. 18 In the course of his discussion of the issue which arose in that case, [NAME_48] (with whom Wood CJ at CL, Howie J, Hunt AJA and Johnson J relevantly agreed) discussed, among other things, various functions performed by an indictment. One of those was "to invest the trial court with jurisdiction to hear and determine the prosecution" (see [NAME_48] at 53). This in turn led to a consideration of s 130 of the CPA. The relevant part of that section is in the following terms: "130(1) In this section, 'Court' means the Supreme Court or District Court; (2) the Court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and [NAME_44] person is arraigned and any orders that may be made by the Court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial." 19 [NAME_48] referred to s 130 in the following terms at paragraph 41: "Even prior to the enactment of section 130, the District Court's jurisdiction in a criminal matter only arose upon the presentation of an indictment. That rule is now enshrined in section 130, which was enacted to overcome any doubt about the Court's ability to make pretrial orders (see [NAME_49] v District Court of NSW (1989) 168 CLR 23 at 36 to 37)." 20 There is, in the same case, a valuable discussion by Howie J on the same point. At para 219 his Honour said: "The presentation of an indictment and the arraignment of [NAME_44] before the jury panel is a step in the proceedings that marks the commencement of the trial: Regina v Nicolaidis (1994) 33 NSWLR 362 at 367. But it serves no other purpose and I do not believe that it is a necessary step, provided that there has previously been an indictment filed and provided and that [NAME_44] has been arraigned on that indictment. The proceedings for trial on indictment commence upon the filing or presentation of a valid indictment. When [NAME_44] is first arraigned and pleads 'not guilty' he is 'taken to have put himself or herself on the country for trial': Section 154 of the Act. Thereafter the Court has jurisdiction to make orders with respect to the conduct of the proceedings: Section 130(2) of the Act." 21 Howie J's analysis of the importance of an indictment in a criminal trial continues between paras 231 and 234. I acknowledge that I have received considerable guidance from this analysis 22 At para 232 his Honour said: "The presentation of an indictment is therefore the most fundamental of the procedures that attend a criminal trial for an indictable offence. So far as the Courts in this State are concerned, there is neither any other procedural step necessary nor any alternative step available for the commencement of a criminal trial in the District or Supreme Court." 23 There had been an earlier decision of the [ADDRESS] of Criminal Appeal in R v Michael Taylor (2003) NSWCCA 194, where the Court gave consideration to s 130(2) of the CPA. In the course of that case, Bell J (with whom [NAME_48] AJ agreed) said at para 150: "In any event, regardless of convenience, the indictment is the originating process in criminal proceedings in the District Court and the Supreme Court and once presented may only be amended or substituted in accordance with the provisions of the Criminal Procedure Act ." 24 Later, at para 153, her Honour said: "Section 130 confers jurisdiction on the Court with respect to the conduct of proceedings on indictment." 25 And again at para 154 her Honour said: "The institution and conduct of proceedings on indictment in this Court is governed by the provisions of the Criminal Procedure Act and the common law to the extent the latter is not altered by the former." 26 Her Honour then went on to consider the issue in the particular appeal and determined that the relevant proceedings were instituted in the Supreme Court on the first arraignment date. It was on that date that the appellant was deemed to have put himself on the country for trial in respect of the murder charge contained in the indictment. 27 These decisions of the Court of Criminal Appeal make it clear that criminal proceedings in this Court are commenced as soon as the indictment is presented and [NAME_44] is arraigned on the indictment. Proceedings on indictment are not commenced at any earlier date. 28 Accordingly, it is clear that the Director's consent was given well before the commencement of the proceedings on indictment in this Court. For that reason, It cannot be said that these present proceedings lack jurisdiction or are a nullity. 29 This must be so, even if it be correct that irregularity or invalidity touched upon the committal proceedings due to the alleged lateness of the giving of consent. 30 It is clear that the Commonwealth Director of [NAME_46] [NAME_3] has power to proceed upon an ex officio indictment even where there has been a discharge at committal. This power also extends to a situation where there has been no committal (see s 47(4) of CPA; and section 6(2D) of the Director of [NAME_46] [NAME_3] Act 1983 (CTH); see also R v [NAME_4]; R v Dellapatrona (1992) 28 NSWLR 68; R v Butler (1991) 24 NSWLR at 66; R v Hull (1989) 16 NSWLR 385). It must also extend to the situation where a committal is found to be irregular, defective or wanting in validity. 31 Additionally, this is not an application for a stay of proceedings based on concepts of unfairness or prejudice ([NAME_50] (1991) 52 ACR 65). In the present matter, there were extensive committal proceedings over many days. As I understand it, [NAME_44] [NAME_7], as were the others, was legally represented throughout. The Director had, in any event, consented to the commencement of proceedings for the relevant offence prior to the commencement of the hearing of the committal process. There was no complaint made at the committal regarding the date of the consent or the nature of the consent. 32 Prior to that time, as I understand it, the only official steps taken in the process had been the arrest of [NAME_44], their charging by police officers, their remand in custody from time to time and, perhaps, applications, or the foreshadowing of applications for bail. On the more positive side from [NAME_44]'s perspective, the intervening months between arrest and committal were taken up with the proper allocation of legal representation and preparation for the committal process. I have highlighted these matters to address any suggestion that actual unfairness or oppression occurred in the circumstances surrounding the giving of consent and the committal process itself. No counsel has suggested otherwise. 33 For all these reasons, I am satisfied that the subject indictment should not be quashed. In reaching that decision I am conscious that I have not addressed, in any definitive fashion, the interpretation to be given to section 11.5(8) and its application to the facts of the proceedings in the [ADDRESS]. The competing considerations before me were these: 34 [NAME_45] submitted that the filing of the first CAN (or perhaps the filing of the subsequent amendment in January 2007) represented the commencement of the proceedings. This submission contemplated that the proper construction of the section required the selection of a date at the very outset of the process. [NAME_45] conceded that the express language of the section contemplated that arrest, charging, remanding in custody or the granting of bail might occur before the necessary consent had to be given. But he submitted the proceedings are taken to have commenced on the day the first CAN is filed in the [ADDRESS]. 35 The problem with this submission is that it appears the first CAN was (or possibly may have been) filed on the very day [NAME_45]'s client was arrested and charged. It probably predated any application or application for bail or decision (or decisions) regarding the remand of [NAME_7] in custody. I simply do not know when [NAME_7] was first charged before the [ADDRESS] with the offence subsequently appearing in the indictment. No material has been placed before me in this regard. If [NAME_7], for example, was remanded on a number of occasions throughout 2006, could it be said that the consent had to be filed before those dates, and if so, which one or ones? 36 The Crown submission included an argument that section 11.5(8) should not be interpreted so that the expression "proceedings...must not be commenced" referred to a process occurring at the very outset of the [ADDRESS] involvement. The construction the Crown urged, it was said, was supported by a consideration of the purposes of the enactment (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 193 CLR 355 at 69 to 70). 37 The Crown submitted that the consent of the Director was seen as a protection to ensure that conspiracy charges only proceeded when it was appropriate that they do so. Generally speaking, that decision can only be properly made having regard to the evidence against [NAME_44] and to a determination concerning issues about admissibility. These are best explored following a committal hearing. Such a decision would not ordinarily be available at the time of arrest or shortly thereafter. By contrast, the Crown argued that if the consent had to be provided before the first issue of a CAN, it would really defeat or frustrate the purpose of the section. A properly informed decision could not necessarily be made at that time. 38 Secondly, the Crown submitted, based upon the same "purposive" considerations, that invalidity would not necessarily follow from the provision of a consent after the proceedings had been commenced, in the sense argued for by [NAME_45]. 39 I am by no means persuaded that either of these Crown submissions is correct. There is no warrant in the language of the section, for example, that proceedings may not be well and truly commenced when [NAME_44] first comes before the [ADDRESS] and is charged with the offence contained in the CAN, or with the offence contained in an amended CAN, as may have happened here. The objects of the legislation would be equally fulfilled if the Director were required to make up his mind about the issue of consent at or shortly after the time of arrest. Secondly, the language of the section is quite peremptory. I shy away for obvious reasons, from expressions such as "mandatory" or "directory" (Tasker v Fulwood (1978) 1 NSWLR 20 at 23 to 24). But the expression "proceedings...must not be commenced" is, as I say, a forceful one in considering the consequences of a failure to consent within the relevant time frame. 40 I do not propose however to resolve these issues on the issue of construction because I do not feel that it is necessary for the purposes of this decision. Moreover, I have had only brief argument addressed to me on the point and it is not sufficient in the short time I have had to consider the matter to come to a final opinion. In addition, the factual material placed before me does not enable me to conclude or determine whether [NAME_45] is correct or whether the Crown arguments on the application of the interpretation to the facts should be accepted. As a consequence, it is not necessary to determine whether the committal proceedings were invalid or irregular. Even if they were, that does not alter my views about the critical issue involved in the motion. 41 I should also say that I have not, as a consequence, considered every single argument addressed to me during the hearing of the motion. In particular, [NAME_45] referred me to a number of authorities. None of these, it seems to me, deal with the precise statutory expression I have to consider. Moreover, they appear in completely different statutory contexts. Although there are matters of general principle within those authorities which I have found helpful, I do not think, in the end, the authorities themselves shed very much light on the interpretation point. None of those authorities compels a different conclusion about the fate of the present application. 42 I am satisfied that the present criminal proceedings were validly instituted and I dismiss the application seeking to quash the indictment. **********

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