R v Mihans [2000] TASSC 107

McDonnell v Smith [1918] HCA 26; (1918) 24 CLR 409, applied.

R v Parker [1977] VicRp 3; [1977] VR 22; R v Evans [1964] VicRp 92; [1964] VR 717, followed.

Judgment Number: [2000] TASSC 107

1 Desmond Mihans has moved for the arrest of judgment pursuant to the Criminal Code s385(2) ("the Code") following the jury verdict of guilty to the crime of indecent assault. The basis of the motion was that a "substantial defect appears upon the face of the record".

2 The indictment signed by a Crown Law officer originally charged Mr Mihans with the crime of maintaining a sexual relationship with a person under the age of 17 years, contrary to the Code, s125A, which relevantly provides:

"125A. Maintaining sexual relationship with young person

(1) In this section, 'unlawful sexual act' means an act that constitutes an offence under section 124, 126, 127, 127A, 133 or 185.

(2) A person who maintains a sexual relationship with a young person who is under the age of 17 years, and to whom he or she is not married, is guilty of a crime.

Maintaining a sexual relationship with a young person under the age of 17 years.

(3) An accused person is guilty of having committed an offence under subsection(2) if, during a particular period when the young person was under the age of 17 years -

(a) the accused committed an unlawful sexual act in relation to the young person on at least 3 occasions; and

(b) the young person was not married to the accused.

(a) it is not necessary to prove the dates on which any of the unlawful sexual acts were committed or the exact circumstances in which any of the unlawful sexual acts were committed; and

(b) the unlawful sexual act that was committed on any one of the occasions need not have been the same as the unlawful sexual act that was committed on each or any of the other occasions.

(5) It is a defence to a charge under subsection(2) to prove that the accused person believed on reasonable grounds that the young person was of or above the age of 17 years.

(6) An indictment charging a person with having committed an offence under subsection(2) -

(a) is to specify the particular period during which it is alleged that the sexual relationship between the accused and the young person was maintained; and

(b) is not to contain a separate charge that the accused committed an unlawful sexual act in relation to the young person during that period.

(7) A prosecution for an offence under this section is not to be commenced without the written authority of the Director of Public Prosecutions."

3 The conduct alleged was acts of indecency by touching (s127), aggravated sexual assault (s127A(1)(b)), and unlawful sexual intercourse (s124(1)) said to have occurred during a five day period in December 1998. The Code, s125A(6)(b) precluded the inclusion of any separate charge although s337B permitted the return of alternative verdicts for crimes contrary to ss124, 127, 127A.

4 The Director of Public Prosecutions had not given written authority for the preferment of the indictment. Rather than inconvenience the jury the issue was deferred until after verdict to permit resolution by way of a motion to arrest judgment. The prosecution was permitted to amend the indictment in accordance with the Code s385(3) to allege a single act of indecent assault contrary to s127. Thus, if it were determined that the indictment remained valid the verdict of the jury could stand.

5 The issue of absence of authority was raised by the court during the course of a no case submission made at the conclusion of the Crown case.

6 The specific question is whether an indictment, not authorised by statute, can nevertheless be amended so as to allege a similar crime which might be preferred by a Crown Law officer authorised to bring such a prosecution by the Code, s310(3).

7 Parliament has afforded extensive powers to the Crown for the prosecution of sexual offenders. It has recognised difficulties, especially experienced by children, in capacity to identify specific dates or occasions of sexual misconduct over a lengthy period of time (M v R [1994] HCA 63; (1994) 181 CLR 487; Riseley v R [1970] TASSC 21 and similar cases). At the same time Parliament has attempted to provide procedural fairness so that an accused may properly meet the charge.

8 The Code s125A(7) imposes an obligation that careful consideration be given before the power is exercised.

9 The purpose is as stated by Rich J in McDonnell v Smith [1918] HCA 26; (1918) 24 CLR 409, a case involving a war time prosecution which required the consent of the Attorney-General or the Minister of Defence or their delegate before the institution of summary proceedings. In the course of argument, Rich J stated at 411:

"The necessity for getting the prescribed consent to a prosecution is a check on irresponsible persons who might heatedly, although from patriotic motives, institute proceedings. The mischief aimed at by sub-sec 3A is the harassing of people by frivolous prosecutions. Must not the initial stage of the proceeding be sanctioned by some responsible person?"

10 The court affirmed that the information was invalid. In R v Evans [1964] VicRp 92; [1964] VR 717, the Full Court considered the effect of The Legal Profession Practice Act 1958 (Vic), s42, which required that "no prosecution ... shall be commenced without the written consent of the Attorney-General". An issue was whether there could be a valid commencement of proceedings before the authority was given. The court held that the proceedings did not commence until the presentment of the information which in turn could not be made until the Attorney had given authority. The same conclusion was reached by the same court differently constituted in R v Parker [1977] VicRp 3; [1977] VR 22. The presentment signed by an authorised Crown prosecutor was filed on the day upon which he commenced to hold judicial office. The court held that the qualification, and thereby authority, must exist at the time of filing and since a valid presentment had not been made the trial was a nullity.

11 The failure to obtain the consent of the Attorney-General for an indictment made under the Explosive Substances Act 1883, s2, led to a similar result in R v Bates [1911] 1 KB 964 because, as was said in the judgment of the Court of Criminal Appeal delivered by Lord Alverstone CJ at 965:

"In our opinion the failure to obtain the consent of the Attorney-General deprived the Court of any jurisdiction to try the prisoner on the indictment, and, that being so, the conviction must be quashed."

12 Although the pre-condition might be procedural in nature, it is mandatory and its absence does not permit the commencement of valid proceedings (Secretary of State for Defence v Warn (1968) 2 All ER 300).

13 There was no written authority, either at the date of filing of the indictment or at the time of plea. The court had no jurisdiction to try the case and the trial was a nullity. It follows that no amendment could be made to the indictment. It is for these reasons the following verdict judgment was arrested.