Court of Appeal (Qld)|2005-03-11|Before: McMurdo P, Jerrard JA and Mackenzie JSeparate, reasons for judgment of each member of the Court, McMurdo P and Jerrard JA, concurring as to the orders made, Mackenzie J, dissenting in part
McMurdo P, Jerrard JA and Mackenzie JSeparate, reasons for judgment of each member of the Court, McMurdo P and Jerrard JA, concurring as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINALAPPEAL LEGISLATION– MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE –EXTENSION OF TIME, NOTICE OF APPEALAND ABANDONMENT – where applicantbecame aware of unlawful presentation of indictment after time period in whichto appealhad expired – where matter re-listed before sentencing judge andtold the only remedy was by way of appeal to the Court ofAppeal – wherefiled application to Court of Appeal within one month of unsuccessfulapplication to the primary judge –whether application for an extension oftime should be grantedCRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –PROSECUTION – FILING OF INFORMATION, PRESENTMENT OR INDICTMENT–QUEENSLAND – where applicant convicted after plea of guilty to ex officioindictment containing offences against Criminal Code 1899 (Qld) –
where ex officio indictment not lawfully presented in accordance with
requirements in s 560(2) and
s 561 Criminal Code 1899 (Qld)
– whether pleas of guilty for offences and convictions based on them
should be set aside – whether order
for acquittal or new trial can be
made
CRIMINAL LAW – PROBATION, PAROLE, RELEASE ON LICENSE AND REMISSIONS
– FEDERAL OFFENDERS – where applicant convicted
after plea of guilty
to ex officio indictment containing 15 offences against Commonwealth law –
where sentenced to an effective
term of three and a half years imprisonment with
an non-parole period of 18 months in respect of 14 of the Commonwealth offences
and one month cumulative imprisonment in respect of one of the Commonwealth
offences – where non-parole period now expired
– where Commonwealth
Attorney-General required under s 19AL Crimes Act 1914 (Cth) to order in
writing that a person be released on parole at the end of the non-parole period
– where Attorney-General
did not make order at expiry of non-parole period
– whether Attorney-General can now make order
Crimes Act 1914 (Cth), s 19AL, s 19AM(2)(b)Criminal Code
1899 (Qld), s 560(2), s 560(1), s 668E(2), s 669
Crane v Director of Public Prosecutions [1921] 2 AC 299,
distinguishedR v Bright [1980] Qd R 490, appliedR v Foley
[2002] QCA 522
[2003] 2 Qd R 88, appliedR v Smith [1954] QWN 49,
distinguishedR v Suarez-Mejia [2002] WASCA 187
(2002) 131 A Crim R 577,
considered
Judgment (64 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION - MISCELLANEOUS MATTERS - QUEENSLAND - PROCEDURE - EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - where applicant became aware of unlawful presentation of indictment after time period in which to appeal had expired - where matter re-listed before sentencing judge and told the only remedy was by way of appeal to the Court of Appeal - where filed application to Court of Appeal within one month of unsuccessful application to the primary judge - whether application for an extension of time should be granted
[2]
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - PROSECUTION - FILING OF INFORMATION, PRESENTMENT OR INDICTMENT - QUEENSLAND - where applicant convicted after plea of guilty to ex officio indictment containing offences against Criminal Code 1899 (Qld) - where ex officio indictment not lawfully presented in accordance with requirements in s 560(2) and s 561 Criminal Code 1899 (Qld) - whether pleas of guilty for offences and convictions based on them should be set aside - whether order for acquittal or new trial can be made
[3]
CRIMINAL LAW - PROBATION, PAROLE, RELEASE ON LICENSE AND REMISSIONS - FEDERAL OFFENDERS - where applicant convicted after plea of guilty to ex officio indictment containing 15 offences against Commonwealth law - where sentenced to an effective term of three and a half years imprisonment with an non-parole period of 18 months in respect of 14 of the Commonwealth offences and one month cumulative imprisonment in respect of one of the Commonwealth offences - where non-parole period now expired - where Commonwealth Attorney-General required under s 19AL Crimes Act1914 (Cth) to order in writing that a person be released on parole at the end of the non-parole period - where Attorney-General did not make order at expiry of non-parole period - whether Attorney-General can now make order
Commonwealth Director of Public Prosecutions for the respondent
[12]
[1] McMURDO P: Mr Cockrell was convicted on 13 November 2003 after pleading guilty to 19 offences of a fraudulent nature contained in an ex officio indictment charging counts against both the Queensland and Commonwealth Crown. Counts 12, 14, 16 and 18 were offences against Queensland law. The remainder were Commonwealth offences.
[13]
[2] On the Queensland offences, he was sentenced to six years imprisonment with a recommendation that he be considered eligible for post-prison community based release after serving two years. On each of counts one to eight he was sentenced under the Crimes Act1914 (Cth) ("the Act") to three and a half years imprisonment with a non-parole period of 18 months. On count nine (destroying evidence) he was sentenced to one month cumulative imprisonment. On all remaining counts he was sentenced to 18 months imprisonment. Her Honour declined to make a recognizance release order under s 19AC(4) of the Act. Apart from count nine, all sentences were concurrent. Under s 161 Penalties and Sentences Act1992 (Qld), 596 days were declared time served under the sentence. He was also ordered to make reparation to the Australian Taxation Office of $41,502.13 under s 21B of the Act.
[14]
[3] Mr Cockrell applied within time for leave to appeal against sentence but abandoned this application after receiving legal advice. He is now self-represented and applies for an extension of time within which to appeal against conviction. It is not entirely clear whether his application is to set aside all convictions on the indictment but his written and oral argument address only his convictions for the Queensland offences. He contends that the presentment of the indictment insofar as it relates to the Queensland offences was invalid because, although signed by a person authorised to do so under Queensland law, it was not presented by such a person. He does not contend that the indictment insofar as it relates to the Commonwealth offences was anything other than properly presented and valid.
[15]
[4] Mr Keim SC for the respondent, the Commonwealth DPP, concedes that Mr Cockrell's contention is correct but nevertheless resists the application to extend time on discretionary grounds.
[16]
[5] Mr Keim's concession is properly made. The indictment insofar as it concerns the Queensland offences was not presented by a person authorised to do so under Queensland law. It follows that the counts relating to the Queensland offences (counts 12, 14, 16 and 18) have not been lawfully presented and the pleas of guilty and the convictions based on them must be set aside: s 560(2), s 561 Criminal Code 1899 (Qld), R v Foley[1] and R v Bright.[2] There is nothing to suggest that the indictment insofar as it relates to the Commonwealth offences is in any way flawed.
[17]
[6] Mr Cockrell's application for an extension of time was filed on 17 September 2004, about 13 months late. He states the delay was because he only became aware of the unlawful presentation of the Queensland counts on the indictment in early August 2004. He had the matter relisted before the sentencing judge later that month but was told that any remedy was by way of appeal to this Court. He filed this application within one month of his unsuccessful application to the primary judge. Mr Cockrell has provided a satisfactory explanation for the delay. In any case this Court is now obliged to set aside all orders made in respect of counts which have not been lawfully presented before the court. The application for an extension of time must be granted and the appeal allowed to the extent of quashing the convictions on the Queensland counts contained in counts 12, 14, 16 and 18 in ex officio indictment 2756/03. Ordinarily, when this Court quashes convictions it will either order that verdicts of acquittal be entered under s 668E(2) Criminal Code or order a new trial under s 669 Criminal Code. Neither order can be made here because the presentment of the indictment insofar as it charged the Queensland offences in counts 12, 14, 16 and 18 was not lawful. The cases referred to by Jerrard JA and Mackenzie J, Crane v Director of Public Prosecutions[3] and R v Smith[4] which applied Crane in Queensland, in my view differ significantly from this case. In those cases, there was an existing indictment apparently properly presented on which there could be a retrial if ordered. Here, there is no indictment on the Queensland counts presented according to law on which there could be a retrial. It follows that all orders made in respect of the Queensland counts are unlawful and must be set aside and this Court can make no further orders, whether for verdicts of acquittal or for a new trial, in respect of them.
[18]
[7] Mr Keim has indicated that the respondent may seek to present a new indictment in the District Court containing counts 12, 14, 16 and 18. The time for the determination of whether such a presentation is lawful will be when and if the respondent seeks to take that course.
[19]
[8] Mr Keim has raised an additional problem in respect of the sentences imposed on the Commonwealth offences on counts one to eight. Some time ago and after the expiry of the 18 month non-parole period ordered on those counts, Mr Cockrell was placed on a release to work order under the Corrective Services Act 2000 (Qld) ("the CSA") in respect of the Queensland offences. More recently, he was granted bail pending appeal in respect of both the Commonwealth and Queensland offences. This Court enlarged that bail when it reserved its decision so the grant of bail continues until his application before this Court is finalised. Mr Keim points out that under s 19AL(1) of the Act in respect of the sentence imposed on counts one to eight:
[20]
"[T]he Attorney-General must, by order in writing, direct that the person be released from prison on parole:
(a) at the end of the non-parole period; or
[21]
(b) if the Attorney-General considers that in all the circumstances it would be appropriate to do so, on a specified day, not being earlier than 30 days before the end of the non-parole period."
[22]
Apparently because the sentences imposed on counts one to eight were subsumed by the heavier sentence imposed on the Queensland offences, the Attorney-General did not make any order under s 19AL of the Act even though Mr Cockrell had been at large in the community on a release to work order under the CSA.[5] Mr Keim submits that this means the learned primary judge failed properly to fix a non-parole period under s 19AH of the Act and that this Court should now correct that error. That contention is plainly wrong. Her Honour's sentencing order was apt; the Attorney-General has simply not complied with s 19AL(1): see Suarez-Mejia.[6] Although we have not had the benefit of considered argument on the point, there would seem to be no reason to prevent the Attorney-General now making an immediate order under s 19AL of the Act or perhaps, if thought necessary, a retrospective order under that section. As such an order would appear only to benefit Mr Cockrell, the usual concerns relating to retrospectivity do not appear apposite. I have not been referred to nor been able to find any authorities to suggest that such an order could not or should not now be made.
[23]
[9] Yet another difficulty has arisen since the hearing of this appeal highlighted in a letter to the Senior Deputy Registrar (Appeals) from Ms Jane Bentley, the Principal Legal Officer for the respondent. Ms Bentley states that she has been informed by officers of the Corrective Services Commission that, although Mr Cockrell has served more than 19 months imprisonment in respect of the Commonwealth offences but has not been granted parole by the Attorney-General, they do not regard him as having yet served the one month cumulative term of imprisonment imposed on count nine (destroying evidence) and he will, as his sentence presently stands, have to serve that month at the end of his full time release date. Ms Bentley has been advised by the Corrective Services Commission that this will not be necessary if this Court declared that Mr Cockrell had already served the term of one month imprisonment ordered to be served cumulatively in respect of count nine. In these unusual circumstances, the Court should make the declaration sought.
[24]
1. Grant the application for an extension of time within which to appeal against conviction in respect of the Queensland offences contained in the ex officio indictment 2756/03 (counts 12, 14, 16 and 18).
[25]
2. Allow the appeal and set aside the pleas of guilty and the convictions in respect of the Queensland offences contained in the ex officio indictment 2756/03 (counts 12, 14, 16 and 18).
[26]
3. Declare that the cumulative sentence of one month imprisonment imposed on count nine has now been served.
[27]
[11] JERRARD JA: In this appeal I have read and respectfully agree with the reasons for judgment of the President. I agree with Mackenzie J that there is a power to order a new trial for Mr Cockrell on the State counts on which there is a validly signed indictment, albeit that indictment was presented by an unauthorised person contrary to the requirements identified by this Court in R v Foley[2002] QCA 522; [2003] 2 Qd R 88. However, I do not consider it is appropriate to order a new trial on this appeal, because Mr Cockrell has already served all of the actual custody which could result from any re-sentencing. The State could bring committal proceedings on those counts if it chooses, without any order from this Court. Or it could present another ex-officio indictment. But no obvious purpose of justice is achieved by an order for proceedings which are unnecessary if the object of those is to have an offender punished. He already has been, and he has already publicly admitted his guilt of those offences.
[28]
[12] The cases cited by Mackenzie J demonstrate a line of authority which this Court should follow, and which describes the Court's powers in Ch 67 of the Criminal Code 1899 (Qld) as including a power to order a new trial[7] when the proceedings under appeal are revealed as a nullity. In Crane v Director of Public Prosecutions[1921] 2 AC 299, to which Mackenzie J refers, that appellant had been charged on an indictment with receiving certain skins knowing them to have been stolen. Another person was charged on a separate indictment with stealing the skins and also with receiving the same. Both accused were given in charge to the same jury and were tried together, and both were convicted and sentenced. The fact that they were not jointly indicted on the one indictment was not brought to the notice of the Recorder or the counsel appearing in the case. Lord Atkinson noted:
[29]
"The appellant, William Crane, was never, as far as I can discover, properly arraigned on the indictment found against him. He never pleaded to that indictment, the jury who found him guilty were never sworn to try him separately, and had no jurisdiction to find against him the verdict they have found. The whole proceedings were, in my view, as against him, a mis-trial and a nullity."[8]
[30]
[13] Lord Atkinson went on to hold that when the conviction and judgment against William Crane had been set aside and annulled, the indictment stood as if Mr Crane had not been tried at all. His Lordship held that the English Court of Criminal Appeal, which had powers expressed in similar terms to those in Ch 67, was not obliged to direct an acquittal of Mr Crane, and had power to direct that he be tried on the indictment found against him. A majority of the other judges agreed.
[31]
[14] In R v Smith[1954] QWN 49 the Queensland Court of Criminal Appeal applied that decision to the like powers given to it, in a case where a trial was held a nullity after the trial judge had wrongly usurped the jury's function of deciding a challenge for cause to a juror. On the appeal Philp J, giving the judgment of the court, held that the power under s 669 to order a "new trial" included the power to do that in circumstances where the English Court of Criminal Appeal had that power. In Crane, the House of Lords had held as described that the power existed where purported trial proceedings had been a nullity.
[32]
[15] Had it not been for the decision in R v Smith, I would have concluded that s 668E(2) and s 669 of the Code were only applicable in those circumstances where a plea had been recorded after an indictment had been validly presented, and inapplicable in circumstances where, no valid presentation having occurred, Mr Cockrell was never called upon to plead "on the presentation of the indictment", as required by s 597C, and where accordingly no trial proceeding had ever began. I would have agreed with the President that since no indictment has been validly presented for a trial, the only order this Court can make is one setting aside the conviction. However, I consider the facts in Crane cannot be sensibly distinguished from those here. In that case there was no trial on the indictment on which Crane was properly charged, but a trial was held on another piece of paper. Here there was a trial[9] on a piece of paper wrongly given to the court, but on which Mr Cockrell had been properly charged. We should apply the decision in Smith, which followed and applied Crane. I accordingly agree with Mackenzie J that this Court has power to order that a new trial be held on the State counts, but would not so order in the circumstances.
[33]
[16] I add that in respect of the non-parole period of 18 months fixed by the learned sentencing judge on eight of the counts for federal offences[10] in the indictment, the effect of the declaration that 596 days of pre-sentence custody was time already served under all sentences meant that that non-parole period had actually expired before the sentence itself was imposed. At first that would seem an oddity, since if those federal offences were the only matters for which Mr Cockrell was being sentenced to prison, he would have been entitled to release on parole - by reason of an order in writing from the Commonwealth Attorney-General under s 19AL Crimes Act1914 (Cth) - about seven weeks before the order was made imposing that non-parole period. It would therefore have been impossible for the Attorney-General to have complied with the requirement in s 19AL that he direct release on parole at the end of the non-parole period.
[34]
[17] However, that apparent oddity is made much less so when regard is had to s 19AM. It deals with the common enough situation which occurs when a non-parole period being served for a federal offence ends, with the offender serving or still serving a State or Territory sentence[11] which has not expired. Section 19AM(2)(b) provides that in those circumstances the Attorney-General must make the parole order (that is, direct in writing under s 19AL that the person be released from prison on parole); but the order does not take effect before the offender is eligible for release under the State or Territory sentence. Thus, the provisions of the Crimes Act1914 recognise that a Federal prisoner can complete a non-parole period and be the subject of an order for release on parole by the Attorney-General, but remain in custody serving State sentences.
[35]
[18] That is actually what happened to Mr Cockrell on the federal offences. When the sentences for federal and State offences were pronounced on 13 November 2003, their effect was that he remained thereafter in custody serving State sentences, but was entitled to federal parole orders, which the Attorney-General was empowered and required by s 19AL to make.
[36]
[19] I agree with the orders proposed by the President.
[37]
[20] MACKENZIE J: On 13 November 2003 an ex officio indictment containing 19 counts was presented by a barrister employed by the Commonwealth Director of Public Prosecutions. Of these counts, 15 were for offences against Commonwealth law. The remaining four (counts 12, 14, 16 and 18) were for offences against s 408(C) of the Criminal Code 1899 (Qld).
[38]
[21] The following facts were not disputed. Firstly, pursuant to s 15(1)(d) of the Director of Public Prosecutions Act1983 (Cth), the officer of the Commonwealth DPP was authorised to conduct the proceedings on the Commonwealth offences. Secondly, s 6(2A) of that Act authorised the presentation of an ex officio indictment in respect of the Commonwealth counts. Thirdly, the indictment in so far as it related to the offences against the laws of the Commonwealth was signed by a person authorised in writing by the Commonwealth DPP to sign the indictment in his name. Fourthly, he was, on the face of the indictment, also a person authorised to sign indictments for State offences by virtue of appointment in accordance with the Criminal Code. Fifthly, the officer who actually presented the ex officio indictment before the sentencing judge and conducted the case was not authorised pursuant to the Criminal Code to present indictments in respect of State offences.
[39]
[22] The decision in R v Foley[2002] QCA 522; [2003] 2 Qd R 88 and the anticipatory amendments of s 560 and s 561 of the Criminal Code which added a category of "DPP presenters" as persons who might present indictments establish that presentation of an indictment by a person other than those identified in those sections is of no effect. The indictment has not been "presented".
[40]
[23] When it was realised that the presentation of the indictment in so far as it related to State offences was irregular, the Legal Aid Office was advised. The applicant applied for reopening of the sentence pursuant to s 188 of the Penalties and Sentences Act1992 (Qld). Those proceedings were adjourned and, on 21 September 2004, a notice of application for extension of time within which to appeal and a notice of application for leave to appeal were filed in this Court. In the meantime, on 17 June 2004, the applicant had been approved for post-prison community-based release (release to work) and he was transferred to a Community Corrections Centre for that purpose on 12 August 2004. On 7 October 2004, the applicant was granted bail pending the hearing of the appeal.
[41]
[24] The consequence of what happened is that the proceedings in so far as they related to the State offences, and therefore the conviction and all consequential orders, were of no effect. It is not suggested that the convictions upon the applicant's plea of guilty to the Commonwealth offences are in any way affected. The case is one where relief should be granted to the applicant. The nature and basis of orders to achieve that result requires analysis. For example, is it of consequence that the indictment, in so far as it relates to State offences, has not been validly presented even though validly signed? Is it inappropriate to order that there be a new trial, since, on one view of it, the court has never been seised of the State offences; there has not been a validly presented indictment before the court?
[42]
[25] The submissions before the sentencing judge show that pleas of guilty to the ex officio indictment were negotiated with the prosecuting authorities. There seems no bar to an ex officio indictment containing the State counts being presented. Unlike R v Foley, this is a case involving an ex officio indictment. The constraints imposed upon the Crown by s 590 appear not to apply in a case where a person has not been committed for trial. Foley was a case where there had been a committal for trial but the indictment had not been presented within the six month period prescribed by s 590(1). A subsequent application for an extension of time within which to present an indictment had been refused. In the circumstances, the Court of Appeal held that an ex officio indictment could not be presented.
[43]
[26] Further, in a case like this, if it became necessary, there would not appear to be any bar to committal proceedings being held and an indictment being signed and presented on that basis. There is no time limit to that course.
[44]
[27] R v Smith[1954] QWN 49 is a convenient starting point in considering what orders should be made. It was a case where an indictment had been validly signed and presented but the trial was a nullity because the trial judge decided a challenge for cause instead of leaving the issue to the jury members already empanelled. It was said that the trial became a nullity because of that defect. It was conceded by the Crown that the conviction should be quashed.
[45]
[28] Philp J, delivering the judgment of the Court of Criminal Appeal, accepted that since the applicant had been convicted, he was entitled to appeal and to have the conviction quashed. He referred to Crane v Director of Public Prosecutions[1921] 2 AC 299 as support for that approach. In Crane, it was decided that the English Court of Criminal Appeal had retained the power, formerly residing in the Court of Crown Cases Reserved, to issue a writ of venire de novo where the trial had been a nullity although there had been the external appearance of a trial leading to conviction. The consequence was that a new trial could be ordered. The form of the order made was that the conviction and judgment upon the indictment be set aside and annulled and that the applicant appear for trial on the indictment.
[46]
[29] The reason why it was necessary to analyse the power to order a new trial in Crane was that the specific powers available under the Court of Criminal Appeal Act 1907 (Imp) were limited to quashing the conviction and entering the verdict of acquittal except in a case where, notwithstanding the error, no substantial miscarriage of justice had occurred (see also R v Rose[1982] AC 822). Both Crane and Rose differ from the present case in that, in the former, there was a due committal for trial but the trial was irregularly conducted by common error on the part of all involved in that it was a joint trial even though separate indictments had been presented. In Rose, there was a validly presented indictment but an irregularity in procedure that resulted in no valid verdict being returned.
[47]
[30] In R v Potter & McKenzie[1959] Qd R 378, where prisoners were tried on a joint indictment when the evidence established that their offences were several, Philp J said the following:
[48]
"I think it not necessary to decide whether in the instant case the trial was a nullity. If it were, we have the same power to quash the conviction and grant a new trial as we would have if the trial were merely a mistrial. (R v Smith ([1954] QWN 49)."
[49]
This was also a case where there had been a committal and a validly signed indictment, albeit defective in respect of joinder.
[50]
[31] In the present case, there was an indictment duly signed by a person authorised to do so; at the time of the trial, there was a valid indictment in being, although not validly presented in court. It does not seem to be inconsistent with existing Queensland authority to order a new trial. In Smith, Philp J said by way of conclusion:
[51]
"It is certain that an order for new trial or for a venire de novo has the same result - a trial; in common parlance amongst modern lawyers that trial would be referred to as a new trial irrespective of whether the first trial was a mistrial or a nullity.
I conclude that the words "new trial" as used in the section are wide enough to give us the power to order a trial in such circumstances as a court of error would grant a venire de novo."
[52]
However he expressed some hesitation because of the limited argument on the point.
[53]
[32] In earlier discussion about the powers available, Philp J said in Smith that chapter LXVII of the Code ("ch 67") in its original form did not retain the powers of the Court of Crown Cases Reserved. Section 26 of the Supreme Court Act 1867 (Qld) (repeated as s 204 of the Supreme Court Act 1995 (Qld)) made the Supreme Court a court of error, by virtue of which it could grant a venire de novo. However the Court of Criminal Appeal, being a separate court from the Supreme Court had not been given such power. The only power the Court of Criminal Appeal had pursuant to ch 67 was to direct an acquittal if the conviction was quashed and it did not operate under the other powers under ch 67. It is implicit in this that a conviction was quashed, the only options were to enter a verdict of acquittal (s 668B(2)) or order a new trial (s 669). The option of merely quashing a conviction on a particular count was not available.
[54]
[33] The majority of the Court of Appeal in R v Pettigrew[1996] QCA 235; [1997] 1 Qd R 601 (Pincus JA and Mackenzie J) said that the jurisdiction under s 8(1) of the Supreme Court of Queensland Act1991 (now s 58(1) of the Constitution of Queensland 2001) included a wide power to correct miscarriages of justice. Fitzgerald P thought that, whether or not that provision added substantially to the court's inherent jurisdiction, the inherent power of the court to prevent injustice clearly extended to setting aside the order in question, an interlocutory order refusing leave to appeal against sentence where refusal of leave was based on a common misapprehension by the parties and the court as to the effect of the order against which leave to appeal had originally been sought. Had I not come to the conclusion that the matter may be properly dealt with under ch 67 of the Criminal Code, I would have been disposed to make an order that the conviction and judgment on the indictment upon which the applicant was convicted be set aside and annulled, in reliance on Pettigrew. The form of such order would have derived from Crane.
[55]
[34] Because of the conclusion reached earlier in these reasons, I consider the appropriate order is that the application to extend time within which to appeal against conviction be allowed. Leave to appeal should be granted and the appeal allowed. The convictions on counts 12, 14, 16 and 18 should be set aside and an order made that a new trial be held on the indictment signed by Glen Raymond Rice. I would also order that the applicant's bail be enlarged until trial.
[5] A release to work order differs from a parole order although both are forms of post-prison community based release under the CSA: see Ch 5, esp s 141, s 142 and s 144.