Supreme Court of the NT|1987-10-29|Before: Maurice J

The Queen v. Richard Gordon Haslett and Heather Mary Haslett [1987] NTSC 68; 50 NTR 17; 31 A Crim R 85; 90 FLR 233 (29 October 1987)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Asche C.J.(1) CWDS Criminal Law - Ex officio indictments - Attorney-General's power to sign indictments unexaminable - but court may quash or stay indictments subsequently. Criminal Law - Ex officio indictments

Circumstances in which Court may quash or stay - Inherent power of the Court - Criminal Code - S.339. Criminal Law - Application to quash or stay indictment - Unfairness to accused - Onus of proof - Weight to be given to accused's loss of committal proceedings. Criminal Law - Perjury - Attempting to obstruct or defeat the course of justice - Need for particulars - Crown not supplying particulars except by providing transcript of accused's evidence in earlier case and marking various passages where perjury alleged - Unsatisfactory practice - Criminal Code S.

Cases followed: Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 R v Siugzdinis (1984) 32 NTR 1 Tringali v Stewardson Stibbs and Collett Ltd R v Mummery Cases considered: R v Phil Maria Barton v The Queen ; Traino v The Queen SA - CCA (Unrep 21/5/87) Barron v Attorney-General for NSW (NSW - CCA) (Unreport 18/8/87) Cases referred to: Carlin v Thawat Chidkhunthod and Anor (1985)4 NSWLR 182 HRNG DARWIN #DATE 29:10:1987 Counsel for the Crown : W.J. Karzcewski Solicitor for the Crown : NT Government Solicitor Counsel for the First Accused : G. Barbaro Solicitor for the First Accused : ALAO Counsel for the Second Accused : J. Tippett Solicitor for the Second Accused : Close and Carter ORDER Indictments quashed. JUDGE1 These are motions on behalf of two accused to quash or stay ex officio indictments presented against them. Counsel for the accused rely upon S. 339 of the Criminal Code, or alternatively the inherent powers of the Supreme Court to control its own proceedings. 2. There is no dispute between the Crown and the accused as to the facts out of which the present issues arise. I will set them out. 3. On 15 December 1986 the accused Richard Gordon Haslett (whom I will refer to as the first accused) was presented for trial before Maurice J. and a jury on one count of possessing cannabis for the purpose of supply and one count of supplying cannabis. 4. Part of the evidence against the first accused was given by two accomplices who testified that they and the first accused had jointly dug up a quantity of cannabis imperfectly destroyed by the police and severally sold much of it in late 1985 and early 1986. The two accomplices testified that they had each thereby received approximately $6,000/$7,000 and that they had reason to believe the first accused had received a similar sum from his sales. Prior to giving evidence against the first accused both accomplices had pleaded guilty to charges of possessing and supplying cannabis and both had been sentenced to terms of imprisonment. 5. The Crown led evidence that in December 1985 the first accused had $7,000 in his possession because in that month he paid that amount in cash for the purchase of a motor cycle. It was the Crown's contention that the accused could not account for possessing such a large sum by honest means and that this must have represented the amounts received by him from his sales of the cannabis dug up by himself and the two accomplices. 6. The person who sold the motor cycle to the accused gave evidence of the payment by the accused to him of $7,000 and gave further evidence that between August and October 1986 he had been approached by the first accused and his mother (the second accused in the present proceedings) and asked to provide false receipts to show that the price paid for the motor bike was not $7,000 but $3,000. He said they told him that they wanted the receipts for the very reason that the first accused was otherwise unable to account to the police for having in his possession the larger sum of $7,000. This witness said he did in fact provide the allegedly false receipts to the second accused; but subsequently, and upon being granted an immunity from prosecution, he gave evidence of the sale for $7,000, the request of the first and second accused that he issue false receipts and the reasons they gave him for this request. 7. At the trial the first accused pleaded not guilty and gave sworn evidence that he had purchased the motor bike for $3,000. He produced and relied upon the allegedly false receipts and he called the second accused to corroborate the amount he had paid and to sustain an alibi. He was convicted. 8. In sentencing the first accused the learned trial judge commented adversely on the evidence given by the first and second accused. I say nothing more about His Honour's comments for the obvious reason that charges arising out of what the two accused did before the trial or said at the trial are yet to be heard and both accused retain the presumption of innocence on those matters. 9. It is proper however to dispose immediately of one plainly incorrect hypothesis raised before me in argument. Nothing His Honour said suggests to me that His Honour proceeded under s. 435 of the Code. That section permits a Judge dealing with a matter on indictment to commit a person for trial for perjury in relation to any testimony given before him in the matter. Such committal by the judge operates without the necessity for any other committal proceedings. I do not say that such procedure should never be used, since the Code obviously contemplates that it may be used; but I do consider that it is a drastic step to take, that it is a power which should be used sparingly. In most cases where a strong and probable case of perjury appears the court could sufficiently express its concern by directing that a transcript of the proceedings including, if the court deems it necessary, the remarks of the judge on sentencing, be forwarded to the Attorney-General. However no argument based on s. 435 has any relevance in these proceedings because it is plain that the learned trial judge did not apply it. 10. On 2 March 1987 Sergeant Haymon of the Northern Territory Police laid informations against both accused charging them each with perjury and attempting to obstruct or defeat the course of justice. On 3 March 1987 these charges were mentioned at the Court of Summary Jurisdiction at Darwin and adjourned for committal hearings on 27 and 28 May 1987. 11. On 22 April 1987 the solicitor for the second accused wrote to the Crown Prosecutor seeking particulars of both charges. 12. The Acting Senior Crown Prosecutor replied on 28 April 1987. "Dear Sir, RE: HEATHER MARY HASLETT FILE NO. 87/3/292 As you are aware this matter has been set down for committal proceedings on the 27th and 28th days of May, 1987. It is not the practice of this office to provide particulars on indictable prosecutions which proceed by way of committal. That is one of the main purposes of a committal hearing. Suffice it to say that the evidence given by your client, so far as her son's involvement in the offence of possess cannabis for supply was concerned and more particularly her evidence in relation to the purchase of the motorcycle and the receipts relating to the motorcycle and toolbox, will be in issue. In this regard, I draw your attention to the evidence given by Mr Kevin Barker for the Crown relating to your client's involvement with him in regard to the receipts for the motorcycle. It is my view that an inspection of the evidence given at the trial is sufficient to clarify the issues at this pre-committal stage." 13. The solicitor for the second accused did not reply to this letter but, on the commencement of the committal proceedings on 27 May, counsel for the second accused applied for further and better particulars and for an adjournment until those particulars were supplied. That application was opposed by the prosecution but it was granted by the learned stipendiary magistrate and the proceedings were adjourned to 15 and 16 September 1987. 14. Now those advising the Crown may have had some legitimate grievance about all this. No reply having been received to the letter of 28 April, and no intimation having been given that an adjournment would be sought on the committal proceedings, it was not unreasonable to conclude that the accused were prepared to proceed on the days fixed for hearing; and I am told that at some expense the Crown had subpoenaed witnesses interstate to be present on those days and those witnesses were present. Obviously it would have been more appropriate, and more courteous, if the solicitor for the second accused had replied to the letter of 28 April making it plain that the course proposed by the Crown was not acceptable and that the application for further and better particulars would be pressed further at the committal proceedings. 15. But the Magistrate heard the arguments on both sides. No doubt he was invited by the prosecution to proceed immediately, and no doubt the fact that witnesses had been brought interstate was in the forefront of the prosecutor's submissions. On the other hand, once the Magistrate formed the view, which he obviously did form, that further and better particulars should be provided, it would have been unjust in a matter of such importance to refuse an adjournment. There is nothing to suggest that the Magistrate did not properly consider all relevant matters, and having done so, he adjourned the proceedings and made the order for particulars sought. 16. It is in these circumstances that the Crown's next move may be thought at least unfortunately timed. For on 4 June, that is eight days after the Magistrate's order, ex officio indictments were issued against both accused on the same charges for which they stood for committal on the date fixed by the Magistrate. 17. Now it is not, as I understand it, conceded by those advising the Crown that the Magistrate's decision prompted their action. Their motives - to use a simile based on a phenomenon rarely seen in Darwin - may have been as pure as the driven snow. But these are, alas, suspicious times and it may be that certain lewd fellows of the baser sort might murmur that something in the nature of chagrin or taking one's bat home had crept into the deliberations of the mighty. To such canards those representing the Crown maintain a dignified silence. It is the right of the Crown, they say, to issue ex officio indictments and it is not for the Crown to give reasons. This is one of the matters to be explored in this application. 18. On 22 June the legal advisors of the accused were informed of the ex officio indictment. On 15 September the adjourned proceedings came before the Magistrate. I have not been informed whether there was any discussion then about committal proceedings or whether either prosecution or defence were ready to proceed. I assume that the prosecution, since it had filed the ex officio indictment, intimated to the Magistrate that the proceedings in his court were now at an end. I am told there was some argument based on the failure of the prosecution to supply the particulars that had been ordered on the earlier hearing. Both accused applied that the informations be dismissed because of this. Those applications were refused and the case adjourned for mention only on 30 October. 19. On 16 September the legal advisors for the first accused were supplied with what I assume purport to be particulars. These consist, in the case of the first accused, of a transcript of the whole of his evidence before Maurice J. and the jury. A substantial number of the accused's answers are marked with a blue tick. 20. A covering letter from the Crown Prosecutor setting out the reasons for this course may politely be described as unusual. I think it necessary to quote the letter in full:- "Dear Madam, RE: RICHARD GORDON HASLETT Please find herewith a copy of the transcript of your client's evidence in the trial R v Richard Gordon Haslett. Those answers marked with a blue tick are answers which the Crown alleges were false and given by your client knowing that they were false. It has proved impossible clearly to circumscribe the perjury in your client's evidence. Some answers may in themselves be true, but based on an implied premise (occurring elsewhere in the evidence) which is a lie. Others, involving opinion about a hypothetical state of affairs, may be true: the suggestion that the state of affairs might be real, is knowingly false. Consequently the Crown cannot exactly limit itself to the ticked answers as constituting the whole of the perjury. Nor is it alleged that every ticked answer is in every respect a lie. I suppose that it will not comfort you to reflect: Oh what a tangled web we weave when first we practise to deceive; nor can I claim any originality in making the observation, but such is the nature of the case. To put it another way, the allegation is that the whole of your client's evidence is based upon a lie - the asserted innocence of the accused - that that lie has been elaborated and buttressed with other lies as the Crown case dictated, and that your client was truthful only in respects which were convenient, irrelevant, or undeniable. Yours faithfully." 21. Those representing the second accused received a similar letter and transcript of their client's evidence with appropriate markings. 22. Mr Barbaro for the first accused first points to the obvious fact that these purported particulars relate only to the charge of perjury in any event and say nothing as to the charge of attempting to pervert or defeat the course of justice. There may be a possibility that the Crown regarded the order as relating only to the perjury charges; but the very nature of the other charge seems to require particulars. By the terms of the letter of 15 September 1987 I can only assume that the only "particulars" the Crown were prepared to supply were these ticked answers. 23. The particulars sought related to the informations. However once the ex officio indictments had been signed and presented it would seem that the Crown continued to rely on the terms of the letter of 15 September 1987 as satisfying any request for particulars of the counts in the indictments. 24. Yet the counts in the indictment remain in very general terms. For convenience I set them out:- "RICHARD GORDON HASLETT and HEATHER MARY HASLETT Count 1 Between 1 June 1986 and 19 December 1986 at Darwin in the Northern Territory of Australia, attempted to pervert or defeat the course of justice. Section 109 of the Criminal Code RICHARD GORDON HASLETT Count 2 On 17 and 18 December 1986 at Darwin in the Northern Territory of Australia knowingly gave false testimony before the Honourable Mr Justice Maurice and a jury of twelve touching matters which were material to a question then pending in the proceeding between the Queen and Richard Gordon Haslett. Section 86 of the Criminal Code. HEATHER MARY HASLETT Count 3 On 18 December 1986 at Darwin in the Northern Territory of Australia knowingly gave false testimony before the Honourable Mr Justice Maurice and a jury of twelve touching matters which were material to a question then pending in the proceeding between the Queen and Richard Gordon Haslett." 25. For reasons which may already be obvious, but which I will deal with in greater detail later, it seems to me that the Crown has manifestly failed to provide particulars in the proper way. Strictly this relates only to ground 5 of the Notice of Motion which complains of this as a formal defect. But the general approach taken in the letter of 15 September gives some concern that those representing the Crown are not fully appreciating the issues raised. For instance, to say that "it has proved impossible clearly to circumscribe the perjury" seems a quite unacceptable confession of failure to be able to draft specific charges; and the balance of the letter seems to suggest an equally unacceptable approach that the charges will remain general, but copious extracts from the accused's evidence will be used indiscriminately to support them. 26. Counsel for the two accused seek to have the indictments quashed or stayed for the various reasons given in grounds 1-5 of the Notice of Motion. All counsel have argued grounds 1-4 together since they raise the same basic issues namely, the extent of the power of the Crown to sign ex officio indictments, the extent of the power of the Supreme Court to stay or quash such indictments and, finally, whether that latter power can and should be applied in the present circumstances. 27. As to the Crown's power to sign ex officio indictments s. 300 of the Criminal Code states that "A Crown Law Officer may sign an indictment against any person for any offence whether the accused person has been committed for trial or not". By definition (s. 1) the term "Crown Law Officer" means the Attorney-General or Solicitor-General. The present indictment is signed by the Attorney-General. 28. In Barton v The Queen ; at 94 their Honours Gibbs A.C.J. and Mason J. say, "It is not correct to say that the exercise of every power given by statute is examinable by the courts in the manner suggested by the applicants. It is correct to say that in cases where a statute confers an administrative discretion which is unlimited in terms, the court must concede to the repository a discretion unlimited by anything the scope and object of the statute." 29. In that case their Honours of the High Court were unanimous in holding that a decision of the Attorney-General under s. 5 of the Australian Courts Act 1828 to present an ex officio indictment was not examinable by the courts. The same principles and for the same reasons in my view apply to any decision of the Attorney-General of the Northern Territory to sign and present an ex officio indictment. The rationale is given by their Honours Gibbs A.C.J. and Mason J. at pp 94-95 of Barton's case: "It would be surprising if Parliament intended to make the Attorney's information subject to review. It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced - see the speeches in Connelly v Director of Public Prosecutions and Director of Public Prosecutions v Humphrys , to which we shall refer shortly - though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. Finally, it cannot be said that the existence of judicial review of the Attorney's decision is essential to the administration of justice for, as we shall see, the court has other powers to ensure that a person charged with a crime is fairly dealt with." 30. See also Stephen J. at p 104 where he refers to "the Attorney-General's unexaminable power to file ex officio indictments": Murphy J. at p 107: and Wilson J. at p 109. Aickin J. expressed his argument with the reasons of Gibbs A.C.J. and Mason J. See also R v Siugzdinis at 6. 31. I am therefore satisfied that this court cannot examine the power of a Crown Law Officer, in this case the Attorney-General, to sign indictments. 32. But that does not mean that the court has no power to quash or stay such indictments once they have been signed. For in plain terms this power is given by the Code. S. 339 states:- "339. MOTION TO QUASH INDICTMENT (1) The accused person may before pleading apply to the court - (a) to quash the indictment on the ground that it is calculated to prejudice or embarrass him in his defence to the charge or that it is formally defective; or (b) to stay the proceedings on the ground that they are vexatious or harassing. (2) Upon such motion the court may quash the indictment, order it to be amended in such manner as the court thinks just, stay proceedings or refuse the motion." 33. In R v Siugzdinis at 7 Muirhead J. pointed out that the powers given by s. 339 are broader in scope than its Queensland or Western Australian counterparts. (S. 596 Queensland Code: s. 614 Western Australian Code). He commented further that such powers go beyond the right to amend an indictment in a corrective manner which is given by s. 312. 34. Furthermore there is no doubt that this court as a superior court of record has the inherent power to stay or postpone the trial where that is necessary to prevent an abuse of process and to ensure that the accused receives a fair trial. Barton v The Queen ; (per Gibbs A.C.J. and Mason J. at p 96, Aickin J. agreeing: Stephen J. at p 103: Murphy J. at p 107: Wilson J. at p 109). 35. In Tringali v Stewardson Stibbs and Collett Ltd at 344 the Full Court of the Supreme Court of NSW agreed with the observations of the trial judge (Else-Mitchell J.) that the inherent power of the court to stay an action is not "confined to closed categories of cases of which vexatious suits is one illustration. It is a power which is exercisable in any situation where the requirements of justice demand it." 36. At the commencement of a very helpful survey of the case-law on this subject in Keith Mason QC remarks:- "The mere fact that some statute or rule of court enables the court to deal with a particular problem in a particular way will not usually exclude inherent powers to deal with it in other ways. Indeed this jurisdiction may be asserted even though the conduct complained of may be in literal compliance with some statute or rule of court." 37. The position therefore can be summed up, as it is by Gibbs A.C.J. and Mason J. in Barton's case at p 96 that, "the courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial." 38. In deciding whether to exercise those powers the court must determine where on balance the interests of justice lie, having regard to the interests of the Crown acting on behalf of the community as well as to the interests of the accused. (Barton's case p 101 per Gibbs A.C.J. and Mason J.). 39. It is contended by Mr Barbaro that, once an application to quash or stay an ex officio indictment is made by an accused, the onus is on the Crown to show that the course taken is necessary or proper. I cannot agree with him on that although I acknowledge the powerful authority he calls to his aid. The statement by Gibbs A.C.J. and Mason J. concurred in by Aickin J. that "a trial without antecedent committal proceedings unless justified on strong and powerful grounds must necessarily be considered unfair" certainly suggests that once an accused applies to a court for the staying or quashing of an ex officio indictment where there have been no committal proceedings he thereby makes out a prima facie case which the Crown must rebut by "strong and powerful grounds". But that is not the approach taken by Stephen J. who points out at p 106 that "the existence of the Attorney-General's right to file an ex officio indictment without prior committal proceedings must not be lost sight of. Its existence means that the mere absence of committal proceedings, although necessarily involving loss of the opportunity to cross-examine Crown witnesses before the trial will not of itself afford ground for a stay". Earlier, at p 104 he said:- "The fair trial of the accused does not, in my view, require as an essential prerequisite that it should be proceeded by committal proceedings.". 40. See also the remarks of Murphy and Wilson JJ. already referred to. Indeed Wilson J. goes furthest in the opposite direction when he says:- "As I have already made clear, I am prepared to concede to the courts a jurisdiction to stay criminal proceedings when such action is necessary to meet an abuse of process. But I agree that it is a power which is reserved for use in exceptional cases and particularly is this so when the abuse of process

is alleged to flow from the exercise by an Attorney-General of a power which is granted him by statute. As I have said I am unable to perceive how it can be an abuse of process to wish to proceed to trial on an ex officio indictment merely because the accused person is thereby denied the opportunity of a preliminary hearing." 41. In Barron v Attorney-General for NSW (unrep) 18/8/87 Samuels J.A. was expressly of the view that in that case it was for the claimant to show that the Attorney-General's present intention to proceed on an ex officio indictment was likely in all the circumstances to deprive him of a fair trial. See also R v Mummery (1984) 29 NTR 51 at 55 when O'Leary J. as he then was, said:- "On an application to stay proceedings on an indictment on the ground of absence of, or of some deficiency in, a preliminary examination, I think it must be shown that, by reason thereof, the accused person has been substantially deprived of the benefits and advantages that he is entitled to have from a proper preliminary examination, and that a stay is necessary to ensure a fair trial for him." 42. To the above observations one should add that, at least so far as any application under s. 339 of the Code is concerned, it must necessarily be for the accused to establish one or more of the grounds therein expressly required to be established before the indictment may be quashed or stayed. Onus probandi est ei qui affirmat non qui negat. 43. I conclude therefore that where the Crown files an ex officio indictment without preliminary examination, and the accused applies to have that indictment quashed or stayed, it is for the accused to establish one of the statutory grounds set out in s. 339; or to establish that some unfairness or disadvantage has occurred to the accused which, balancing the interests of the accused against that of the Crown representing the community, makes it unjust for the indictment to proceed to trial at that stage or in that form. 44. However the question of onus of proof may not often be a factor of great importance; for even among the judges who disagree with the strong statements of Gibbs A.C.J. and Mason J. there are those who concede that loss of the right to committal proceedings is a serious matter for the court to consider. Stephen J. in Barton's case (p 105) remarks that the absence of committal proceedings will "always call for a careful evaluation by the trial court of all the circumstances, lest the consequent prejudice to the accused should be such as to have deprived him of a fair trial". Mahoney J.A. in Barron's case, after discussing and agreeing with the view that committal proceedings may be sometimes misused, concludes:- "But in my opinion these matters go to cases of abuse. They do not lessen the importance, in cases where committal proceedings are appropriate, of the advantages which, in a particular case, are to be derived by an accused from such proceedings." 45. Where, therefore, an ex officio indictment has been filed without preliminary inquiry, it should not be sufficient for an accused to rely only upon that fact to have the indictment quashed or stayed. Otherwise the "unexaminable power" of the Crown is put at naught. But once an accused establishes prima facie some prospect of unfairness in a particular case the court should investigate the matter fully, bearing in mind that deprivation of committal proceedings may be a serious interference with the rights of the accused. 46. The Crown may be silent when nothing more appears than that the accused has been presented on an ex officio indictment. But once some element of unfairness or injustice to the accused is shown it behoves the Crown to support its position, or by remaining silent, concede. For the investigation is then no longer the prohibited investigation into the power of the Crown to issue the indictment; it has become the legitimate and necessary inquiry by the court as to whether its processes are being abused or injustice or unfairness occurring by deprivation of process. 47. Herein, if I may respectfully say so, lies the force of the remarks of Gibbs A.C.J. and Mason J. in Barton at p 101:- "It is for the courts, not the Attorney-General, to decide in the last resort whether the justice of the case requires that a trial should proceed in the absence of committal proceedings. It is not for the courts to abdicate that function to the Attorney-General, let alone to Crown Prosecutors whom he may appoint. We need to recall that the commencement of prosecutions is in very many cases left to Crown Prosecutors. It is quite impossible for an Attorney-General to deal personally with the question except in a minority of cases and then in accordance with advice tendered to him by officers who are acquainted with the materials. If the courts were to abdicate the function, there is the distinct possibility that the ex officio indictment, so recently awakened from its long slumber, would become an active instrument, even in cases in which it has not been employed in the past, notwithstanding the vigorous criticism which has been directed to it and the assertions of commentators that it was appropriate for use only in a very limited category of cases." 48. Mr Barbaro for the first accused supported by Mr Tippett for the second accused puts forward the following reasons why the ex officio indictments here should be quashed or stayed:-

That the accused have been denied the basic right to be presented by the Crown with the evidence against them and to test that evidence in cross-examination.
That there is an additional and special reason why this procedure is unfair to the accused in this case because by s. 98 of the Code a person cannot be convicted of perjury on the uncorroborated evidence of one witness. This makes it particularly important for the accused to determine in committal proceedings just what is the nature of the corroboration upon which the Crown relies.
The accused lose their right to call evidence in rebuttal.
There is a possibility which is now denied the accused that the Magistrate could hold that there was no prima facie case. This has more than a little importance because of the

provisions of s. 98. 5. That so far as the charges relate to attempt to to pervert or defeat the course of justice such a charge could be heard summarily (s. 121A Justices Act) unless pursuant to s. 122A of the Justices Act the Magistrate refused to do so. The accused loses at least that chance, where the indictment is ex officio. 6. The Crown also lose the opportunity of seeing whether its witnesses come up to proof and of amending the indictment if the evidence indicates that necessity. 49. I reject the last two submissions. As to the fifth submission in the circumstances of this case I would think it highly unlikely that a magistrate would be prepared to deal with the charges summarily. As to the last submission, Mr Barbaro's solicitude for the interests of the Crown is highly commendable but, one would think, really a matter for the Crown. I suspect Mr Barbaro had his tongue rather firmly in his cheek in making this submission. However I consider that the first four submissions in combination require careful examination, particularly in the light of Barton's case and the recent decision of the New South Wales Court of Appeal Barron v Attorney-General for NSW (unrep) 18/8/87. 50. In Barron's case their Honours of the New South Wales Court of Appeal were faced with a case where the claimant Barron appealed from a decision of a District Court Judge refusing to stay an ex officio indictment presented against him. In addition Barron sought a declaration from that court that he was "entitled to full and proper committal proceedings before he is tried on an indictment charge of conspiracy to cheat and defraud." One Lepik had already been committed for trial on 16 counts alleging he had dishonestly obtained a financial advantage, and a count of conspiracy. Barron was charged on the same counts either as principal or as aiding the abetting of the conspiracy with Lepik, and he was charged with 17 similar alternative counts. Barron had been out of the country for some years and he was extradited from the United States to face these charges. A few days before his return to Australia the Attorney-General directed that an ex officio indictment be filed against Barron and Lepik jointly. It was conceded on behalf of Barron that a prima facie case against him had been demonstrated in the committal proceedings against Lepik. Barron contended that by the filing of the ex officio indictment he had lost the opportunity of demonstrating in cross-examination that the oral representations he was alleged to have made were substantially different from those upon which the Crown relied; that he would have led evidence on the committal proceedings to establish a different picture than that portrayed by the Crown; and that in the light of that cross-examination and of that evidence led by him the magistrate would have discharged him. Hunt A.J.A. with whom Samuels J.A. substantially agreed, took the view that the court could not be satisfied, on the material before it, that the prejudice claimed by Barron by reason of his absence from the committal proceedings outweighed a number of prejudices suffered by the Crown, (including expense and delay). Mahoney J.A. agreed in dismissing the application but on the narrower ground that he was not satisfied that the assessment of the trial judge had been shown to be wrong to the extent that or in respects such that the Court of Appeal should intervene. 51. Their Honours of the Court of Appeal took the view that no binding principle had been created by three judges of the High Court since it had not been adopted by the other three. 52. Samuels J.A. said:- "I am also of the view that the joint judgment of Gibbs A.C.J. (as he then was) and Mason J. (as he then was) in which Aickin J. agreed does not yield a majority opinion which is binding on us; although it is, of course, entitled to the greatest respect." 53. Mahoney J.A. observed that the views of their Honours were "not congruent" and, "Assuming as I think to be the case that the difference

between their Honours was a matter of principle, I do not think this Court should treat the matter as tabula rasa." 54. Hunt A.J.A. said: "Obviously enough, the judgments in Barton's case produced no clear ratio in relation to the approach to be adopted in an application to stay proceedings upon an ex officio indictment in the absence of prior committal proceedings." 55. In Barton's case Murphy J. was critical of the committal process generally; so for somewhat different reasons were Samuel J.A. and Hunt A.J.A.; for their complaint was rather to the fact that it is so very often misused. Both judges referred to the remarks of O'Brien C.J. of the Criminal Division of New South Wales in Carlin v Thawat Chidkhunthod and Anor (1985) 4 NSWLR 182 at 190 in which His Honour made some trenchant criticisms of the use of committal proceedings in New South Wales. 56. However the fact of misuse should not suggest that a proper and valuable weapon in the armoury of the accused should be rejected; nor do I read their Honours Samuel J.A. and Hunt A.J.A. as going so far. I would adopt with respect the remarks of Mahoney J.A. "I am conscious that, in committal proceedings, accused sometimes use the proceedings available for purposes for which, in principle, they were not intended. But that, in my opinion, should not lead to the conclusion that the absence of committal proceedings should be seen as of less significance in assessing the prospective fairness of the trial of accused persons generally. The argument from abuse to lack of use involves error." 57. In considering the remarks of Gibbs A.C.J. and Mason J. (already quoted) Mahoney J.A. had this to say:- "A trial court should, in my opinion, prudently treat the words " ... unless justified on strong and powerful grounds, must necessarily be considered unfair" as the appropriate guide in arriving at its assessment of the accused's position. If

and insofar as it be relevant my view is that the emphasis conveyed by that approach is the appropriate one." 58. While I do not take their Honours Samuel J.A. or Hunt A.J.A. to disagree with this principle they tend rather to emphasise the balancing process between the rights of the accused and the rights of the Crown as representing the community. Samuel J.A. speaks of the court determining whether the disadvantage the accused will suffer is unacceptable to the extent that the trial would be unfair. Hunt A.J.A. treats the issue as being whether the prejudice suffered by the accused outweighs the detriments suffered by the Crown. 59. While therefore there is obviously a divergence in judicial view as to the importance in principle of committal proceedings there is a sufficient majority to establish at least this approach that, once the accused establishes a prima facie case of unfairness, the lack of committal proceedings becomes an important matter for the court to examine. In doing this the loss of opportunity to the accused to cross-examine, to know the case put against him, to submit no case, to give evidence himself and call witnesses, may all be factors to be taken into account to a greater or less degree depending on all the circumstances. In addition any detriment to the accused must be weighed against any detriment to the Crown representing the community. 60. Furthermore, once an accused has raised some element of unfairness or injustice to him the court is thereby put upon enquiry, and is then entitled to ask the Crown why it is proceeding in this way. It seems to me that one of the things which the Crown must then explain is why it has taken a course which is not usual. To the warnings conveyed by Gibbs A.C.J. and Mason J. in the passages quoted above I add those of Muirhead J., a judge of immense experience in criminal law, in R v Siugzdinis (1984) 32 NTR 1 at 11 that "the practice of laying ex officio indictments should be restricted to cases where for good reason (and generally by agreement) it is decided as necessary in the interests of justice to proceed without committal proceedings." 61. Although His Honour was there dealing with a case where additional indictments had been filed after committal proceedings I take His Honour as laying down a general principle and I note also his remarks that the governing principle is that of fairness. 62. I turn therefore to the circumstances of the cases presently before me. 63. I must say candidly that the actions of the Crown have given me some concern. I hasten to say that I do not lay any blame for that on Mr Karczewski the learned Crown Prosecutor who appeared before me and has had to defend the actions of others. But the position is plain that these proceedings commenced in the usual and accepted manner i.e. by committal proceedings. Upon the accused enquiring for particulars before the hearing the Crown in the letter of 28 April 1987 which I have already set out made no suggestion that it contemplated ex officio indictments. Instead it used the reason that committal proceedings were to go ahead as the very basis for refusing to provide particulars because, "that is one of the main purposes of the committal proceedings." 64. When the Magistrate then adjourned the matter to enable the Crown to provide particulars as requested, the Crown, as I understand it, did not then suggest that the particulars would not be provided or that the committal would not proceed on the adjourned date. Eight days later the Crown issued the ex officio indictments thereby effectively preventing any further proceedings before the Magistrate save for formal orders. 65. No particulars were supplied as to attempting to pervert or defeat the course of justice. As to the particulars ultimately supplied as to perjury they were supplied in a most unsatisfactory manner. 66. In these circumstances I consider that the accused make out a prima facie case of unfairness. The accused were led into a belief that they would be able to and indeed expected to adduce from the evidence presented at the committal the particulars they sought and then denied that very opportunity which the Crown in the letter of 28 April had said would be open to them. 67. That being the case, and according to the principles I have already stated an explanation seems called for by the Crown. Mr Karczewski relies on these matters:-

The first accused was present throughout the original trial from which the present charges arise and the Crown would be proving much the same matters as in the previous trial.
Two additional witnesses were to be called; but a summary of their evidence had been provided to the accused in the affidavit of Mr Wallace filed in these proceedings and their statements would be provided before the trial.
The Crown had supplied both particulars and evidence i.e. by supplying the particulars requested and the transcript and it could do no more.
The credibility of both accused as witnesses at the trial was "hotly contested" so that both well know what is alleged against them. The contest in credibility was

also remarked on by the trial judge in sentencing. 5. The first accused was already serving a prison sentence and it was in his interest to have a speedy trial. 68. These arguments are I fear, unconvincing. The fact that the first accused was present at the original trial means nothing in this context. Obviously the same could be said about many persons charged with perjury in earlier proceedings. What the learned trial judge said cannot be said to take the matter further other than perhaps foreshadowing to the first accused that further proceedings could occur. In any event, as Mr Tippett on behalf of his client points out, the second accused was not present during the whole of the trial. The evidence of the two additional witnesses may well prove important if, as I understand to be the case, their evidence is to be relied upon as corroboration for the perjury charges; and it is just such evidence which the accused may wish to test in committal proceedings. The purported particulars to my mind are totally unsatisfactory; and a combination of transcript and unsatisfactory particulars does not add up to a case which the accused know they are to meet. The argument that the Crown could do no more than provide transcript and particulars seems feeble unless the Crown is embarking on a policy of ex officio indictments in all cases of perjury; in which case it sounds sinister. The fact that the credibility of the accused was a factor in the earlier trial is no argument against committal proceedings for the present charges where the issues are different. I appreciate the need for dispatch of the case where one accused in in prison, but not if that is to be to the disadvantage of that accused. 69. What is quite obvious is that the present counts of the indictment as they stand are general. So far as the count relating to attempting to pervert or defeat the course of justice is concerned no particulars of any sort are given. Yet this is obviously a count where particulars must be given. There seems to be reliance on a number of acts done by the two accused jointly which might be interpreted as attempting to pervert or defeat the course of justice. Is the Crown proposing to call a body of evidence and invite the jury to sort out those parts which relate to the charge and invite them to convict if they find all, any or one of those parts proved? Surely as a matter of fairness the accused must know just where the attack is to come from. If the Crown wishes to rely upon more than one act it has a right in the interests of orderly presentation and clarity for the jury and it has a correlative duty to the accused to file separate counts and particularise each. Furthermore if a jury were to find an accused guilty on one generalised charge, how is the judge to sentence? Is he to presume that the jury have accepted the whole series of acts alleged by the Crown? Or does he give the accused the benefit of the doubt and sentence on the basis that the jury may have been satisfied that only one of several attempts to pervert justice may have been proved? Whichever view he takes may result in either too heavy or too light a sentence with a consequent injustice either to the accused or to the community. 70. S. 305 of the Code is in clear terms:- "S305 (1) An indictment shall contain a statement of the offence charged together with such particulars as may be necessary to give reasonable information as to the nature of the charge. (2) If more than one offence is charged each offence shall be set out in a separate paragraph and numbered consecutively." 71. The same observations apply to the charge of perjury. In a real sense the mischief is compounded because one can only conclude from the presentation of transcript and the marking of various passages in the transcript that the Crown really does propose to present to the jury a series of allegedly false statements made by the accused and invite the jury to come to one verdict on all of them. 72. In Traino v The Queen (unrep 21/5/87) a decision of the Court of Criminal Appeal of South Australia the appellant had been charged that he, being a witness at the hearing of an action in the Supreme Court, "knowingly falsely swore that injuries he received in a vehicular collision prevented him from carrying out specific physical tasks". 73. The solicitor for the appellant sought particulars as to the physical tasks referred to in the charge and the passage of the evidence in which the alleged perjury was committed. There was no reply in writing to that request. However the prosecution informed the solicitor for the defendant that the Crown was presenting its case on the combined effect of the statements, rather than any individual statement, in relation to his ability to bend his back, bend his neck, lift his arms and perform tasks of a domestic nature. 74. The prosecution opened the case to the jury by reading out a number of passages in the appellant's evidence in the earlier case in which he had made specific complaints of restrictions of various bodily movements and restrictions on work and recreational capacity caused by pain and weakness. 75. King C.J. set out the situation above and commented:- "The crime of perjury consists in giving upon oath, in a judicial proceedings, before a competent tribunal, evidence which was material to some question in the proceeding and was false to the knowledge of the deponent, or was not believed by him to be true, Russell on Crime, 12th edition Vol. 1 p 291. The crime consists in the making of a deliberately false statement in the postulated circumstances. It follows that if more than one false statement is made in the course of the evidence of a witness in a particular case, each such false statement is a separate crime of perjury. Thus in R v Sweet-Escott (1971) 55 Cr App Rep 316 the accused was charged with five counts of perjury in respect of the denial in evidence of five prior convictions. Each statement to which perjury is assigned is a separate crime and must therefore be made the subject of a separate count. It is not always easy to know when a number of answers in evidence amount to a single false statement or when they constitute separate false

statements." 76. His Honour went on to discuss circumstances in which the cumulative effect of a number of false statements may amount to a single compendious lie chargeable as such in a single count. His Honour was of the view that Traino's case did not come within that category. "It seems to me that in alleging false statements in relation to 'specific physical tasks', the information charged the appellant with several false statements, that is to say several crimes of perjury in the one count. It is not possible to say what particular statement or statements were the subject of the verdict and therefore what crime or crimes he has been found guilty of." 77. Jacobs and Milhouse JJ. concurred with the reasons of the Chief Justice on this point. 78. It seems plain to me that in the present case the general count against each accused that each "knowingly gave evidence ... touching matters which were material to a question then pending in proceedings between the Queen and Richard Gordon Haslett" is bad for lack of particulars under s. 305: and if the answers of the accused as marked by the Crown in the transcript supplied to the accused are relied upon by the Crown then the counts are bad for duplicity and - although this may not be a recognised legal category of objection

for obfuscation. Any perusal of the transcript of the evidence of the first accused will show that a number of specific statements are made by him; and if the Crown wishes to allege that they were knowingly falsely made it will need to particularise separate counts.

I totally reject the suggestion that the Crown can do no more than it has done. I see no reason whatever why a number of counts each relating to a specific allegation of perjury, cannot be framed. Mr Barbaro has referred me to the precedents contained in Archbold

42nd Edition. I refer to the precedent at p 2108:- " STATEMENT OF OFFENCE Perjury contrary to s. 1(1) of the Perjury Act 1911 Particulars of Offence AB on the day of having been lawfully sworn as a witness in a judicial proceeding wilfully made a statement in that proceeding which he knew to be false namely that .......".

Naturally the indictment under the Code is not framed in precisely that manner, but the principle is the same, namely that the general offence is charged and then the particulars given which are alleged to sustain it.
Furthermore Count 1 charges both accused jointly. It should be clear that in a joint charge the need to give particulars would be of special importance. For it may well be that one of the two accused may be able to show that he or she was not involved in whatever joint enterprise is alleged. It creates a peculiar difficulty if that enterprise is not set out.
Ground 5 of the Notice of Motion seeks that the indictment be quashed as being formally defective. The formal defect alleged can be stated in the terms of s. 305(1) of the Code that the counts do not contain "such particulars as may be necessary to give reasonable information as to the nature of the charge."
Under s. 564 of the Queensland Criminal Code the requirement is that the indictment must "set forth the offence with which the accused person is charged in such manner and with such particulars as to the alleged time and place of committing the offence, as to the person, if any, alleged to be aggrieved, and as to the property, if any, in question, as may be necessary to inform the accused person of the nature of the charge."
In R v Phil Maria (1957) St R Qd 512 at 523 Stanley J. commented on this section:- "In my opinion the Code aims at continuing the common law practice - one charge known to the accused, with particulars if needed, giving every fair opportunity to prepare his defence to what is charged and particularised against him."
These remarks have, if anything, greater weight in the Territory because the provisions of s. 305(1) are broader than the Queensland provisions.
In my view the indictment here does not give that reasonable information as to the nature of the charges alleged which is necessary both as a matter of fairness to the accused and as a matter of precision to be expected from those who have the carriage of these matters on behalf of the community.
It follows that pursuant to s. 339(1)(a) I would have either quashed the indictment on this ground alone or, at least, pursuant to s. 339(3) have stayed the indictment until properly amended. I am satisfied on both bases of s. 339(1)(a) that the indictments as they stand and because of their lack of particularisation are calculated to prejudice or embarrass both accused in their defence; and for the same reason, i.e. lack of particularity, they are formally defective. I take the meaning of the expressions "calculated" in this context to be "of a nature or character likely to" prejudice or embarrass the accused in their defence. (See O.E.D.).
But in the circumstances of this case I consider I should take a broader view of the whole case and quash or stay the proceedings either pursuant to s. 339(1)(b) and (2) or within the inherent powers of the court to prevent unfairness or injustice.
So far as s. 339 is concerned it is relevant to note that it is directed to two separate matters although the court is given general powers under s. 339(3).
Hence under s. 339(1) the applicant applies to quash the indictment. However once he makes that application the court, as well as having power to quash, is given the power in s. 339(3) to make less drastic orders i.e. to order amendment, or to stay; or of course, to refuse the motion.
Under s. 339(2) the applicant applies to stay the proceedings. But under subsection (3) the court may on that application go further and quash the indictment or it may stay it or order amendments or refuse the motion.
After careful thought I have come to the conclusion that I should not act under s. 339(1)(b) and quash or stay the proceedings on the ground that they are vexatious or harassing. Although the conduct of the case on the part of the Crown has given me some disquiet I cannot describe the "proceedings" as either vexatious or harassing. I take the word "proceedings" to mean the actual prosecution itself as commenced by the filing and presenting of the indictment, and the subsection speaks only of the proceedings not the subsequent conduct of them. In that sense the proceedings are soundly enough based as the circumstances I have related indicate. There is nothing in the facts to suggest that the accused are being prosecuted or that the prosecution is being persisted in on no reasonable ground. That does not mean that I come to any conclusion as to the guilt or otherwise of the accused. It merely means that I cannot think it unreasonable or vexatious or harassing to the accused that a prosecution has been launched. R v Siugzdinis (1984) 32 NTR 1 is a case where the section was, if I may say so with respect, properly applied because an unnecessary multiplicity of counts was laid, so that the "proceedings" themselves became vexatious or harassing. I should add, lest I be misunderstood, that I would not consider the filing of additional counts in the present indictment to be vexatious or harassing provided they specifically clarified the offences charged and providing they did not go to the sort of excess which Muirhead J. criticised in the case referred to.

I am however satisfied that the circumstances here have created a distinctly unfair situation for the accused. Without any real cause they have been deprived of committal proceedings which they had a reasonable expectation would continue. They have not been supplied with proper particulars to enable them to prepare their defence adequately and it appears no adequate particulars are forthcoming. On serious charges they are prevented from cross-examining witnesses and particularly on the charges of perjury and having regard to s. 98 of the Code they are deprived of the opportunity to see what corroboration is relied on and what is its strength. Without suggesting anything intentionally improper on the part of those advising the Crown it is sufficient to say that having regard both to the interests of the accused and to the interests of the Crown as representing the community there is now a significant element of unfairness to the accused if these proceedings continue. That element of unfairness appears not only in the matters I have specifically set out but in the unsatisfactory explanations adduced on behalf of the Crown for filing ex officio indictments in this case and in the rather peremptory or "take it or leave it" attitude evinced by the letter of 15 September; particularly when that action was taken and that letter written after a specific order made by a Magistrate. I do not wish to be unduly censorious and I appreciate that one episode does not suggest a general philosophy. But it may be well to remember that at various stages of our constitutional history either parliament or the courts have felt bound to warn that "the power of the Crown has increased, is increasing and ought to be diminished". 94. It seems to me therefore that in all the circumstances the better course is to quash the indictments rather than stay them until appropriate amendments are made and particulars given if then necessary. 95. That, of course, does not mean that fresh indictments may not be launched. The Crown has its duty to the community and there is nothing to my mind wrong on the facts as I have been given them for the Crown to proceed on other indictments with appropriate particulars. In such proceedings however I would expect there to be a preliminary examination; unless, of course, those representing the accused consent to the procedures under s. 105A of the Justices Act. 96. Acting therefore under the inherent power of the court to see that no shadow of unfairness or injustice should taint these proceedings I quash the indictments.

Australian Courts Act 1828

Barton v The Queen

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

The Queen v. Richard Gordon Haslett and Heather Mary Haslett [1987] NTSC 68; 50 NTR 17; 31 A Crim R 85; 90 FLR 233 (29 October 1987)

Parties

Legislation Cited (4)

Cases Cited (2)