R v Tran [2002] ACTSC 56

Crimes Act 1900

Australian Capital Territory (Self-Government) Act 1988 (Cth)

Director of Public Prosecutions Act 1990

Jervis Bay Territory Acceptance Act 1915 (Cth)

W v R [2001] FCA 1648 (23 November 2001)

R v Scott [1993] FCA 398; (1993) 42 FCR 1

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

R v Derrick (1984) 29 NTR 9

R v Ferguson, ex parte Attorney-General [1991] 1 Qd R 35; (1990) 45 A Crim R 258

R v Hull (1989) 16 NSWLR 385; (1989) 41 A Crim R 262

R v Lane (1996) 66 FCR 144

R v Smith [1954] QWN 49

R v Hanias (1976) 14 SASR 137

R v Miller [1951] VicLawRp 49; [1951] ALR 749

Thomas v R (No 2) [1960] WAR 129

1. The accused, Viet Dung Tran, has lawfully and validly elected for trial by judge alone.

1. In March 2000 the accused, Viet Dung Tran, was found guilty by a jury of the murder of Thien Thanh Phan and the intentional wounding of Rong Feng Su.

2. It is unnecessary to recite the facts alleged by the Crown. It suffices to recount that, on 22 December 2000, a Full Court of the Federal Court of Australia quashed those convictions and sentences. A re-trial was ordered.

3. The Australian Capital Territory Director of Public Prosecutions, Mr Richard Refshauge SC, has re-presented the indictment of 18 February 2000 upon which the previous trial had proceeded.

4. A date has yet to be set for the re-trial of that indictment. A re-arraignment will, no doubt, occur.

5. On 5 April 2001, the accused signed a notice of election for that re-trial to take place before a judge alone.

6. That election was made in purported pursuance of the rights conferred upon accused persons in the Australian Capital Territory pursuant to s 68B of the Supreme Court Act 1933 (ACT) (Supreme Court Act).

7. That provision, and related provisions, were inserted in the Supreme Court Act by an enactment of the Legislative Assembly of the Australian Capital Territory, notified and taking effect on and from 6 September 1993.

8. The Supreme Court Act became subject to the power of the ACT Legislative Assembly to amend or repeal it (subject to Part VA of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act) on 1 July 1992.

9. However, before that power was enlivened, the ACT Legislative Assembly had already enacted the Director of Public Prosecutions Act 1990 (ACT) (DPP Act). By s 7 thereof, the Director of Public Prosecutions (the DPP) was empowered, as follows:

"(1) The Director [the DPP] may prosecute by indictment in his or her official name indictable offences ...

(2) Where the Director institutes a prosecution on indictment, the indictment shall be signed -

(a) by the Director; or

(b) for and on behalf of the Director, by a person authorised in writing by the Director to sign indictments."

10. Section 22 of the Self-Government Act provides:

"(1) Subject to this Part and Part VA, the Assembly has power to make laws for the peace, order and good government of the Territory.

(2) The power to make laws extends to the power to make laws with respect to the exercise of powers by the Executive."

11. The power of the ACT Legislative Assembly to make laws is expressly limited to laws not "... inconsistent with a law defined by subsection(2) ..." (s 28(1)).

"(a) a law in force in the Territory (other than an enactment or a subordinate law); or

(b) an award, order or determination, or any other instrument of a legislative character, made under a law falling within paragraph (a)."

13. The provisions of the Supreme Court Act and of the DPP Act are not inconsistent with each other. The latter merely enlarges the class of persons who may present an indictment. They are each consistent with the concept that an "indictment" is an "information" alleging the commission of an indictable offence. The "informant" may, therefore, be the Attorney-General (or duly authorised person) or the DPP or person authorised by the DPP pursuant to the DPP Act.

14. This indictment satisfies the requirements of s 7 of the DPP Act. It is, therefore, a valid indictment for the purposes of the Supreme Court Act.

15. Section 68B, Supreme Court Act provides:

"(1) An accused person in criminal proceedings shall be tried by a judge alone if -

(a) the accused person elects in writing to undergo such a trial; and

(b) the accused person produces a certificate signed by a legal practitioner stating that -

(i) he or she has advised the accused in relation to the election; and

(ii) the accused person has made the election freely; and

(c) the election is made before the court first allocates a date for the person's trial; and

(d) [not relevant]

(2) An accused person who elects to be tried by a judge alone may, at any time before he or she is arraigned, elect to be tried by a jury.

(3) If an accused person makes and then withdraws an election, he or she shall not make another election."

16. If an accused person makes no election pursuant to s 68B, that person's trial is by a jury (s 68A, Supreme Court Act).

17. At the time the accused was first arraigned no such election had been made. He was accordingly, before his successful appeal to the Federal Court, tried by a jury. The issue in the present case is whether this accused is entitled now to elect trial by judge alone, the conviction and sentence resulting from the first trial having been set aside and a new trial ordered.

18. That depends on when it is that the right to make that election arises and then expires.

19. The time at which the right to make an election arises was considered by a Full Court of the Federal Court in W v R [2001] FCA 1648 (23 November 2001).

20. The majority, Whitlam and Madgwick JJ, considered that the appellant, though he had elected for trial by judge alone after a date for his trial had been allocated by a judge at a directions hearing, was still entitled so to elect because at the time the date was thus allocated, no signed indictment had been filed or presented. Nor had the accused been formally arraigned. The time for making an election had yet to arise, thus, in their Honours' view, no valid allocation of a date for the purposes of s 68B, Supreme Court Act had been made.

21. In the opinion of Whitlam J, at [69], in upholding the appeal:

"A person under commitment may be "an accused person" under s 68(6), but he or she will not be an "accused person in criminal proceedings" within the meaning of s 68B(1) until an indictment has been filed. It cannot be imagined that the legislature would ever have intended such a person could be expected to make an election before it is known whether there is more than one accused and what are the charges. The requirements of subpars (b)(i) and (ii) could be rendered a meaningless charade. So too, the very object of s 68B, namely, to permit an election as to mode of trial as of right where there is only one accused person, would, in my view, be defeated if par (c) of s 68B(1) were construed so as to permit allocation of a date for trial before an indictment is filed."

22. Madgwick J agreed with that opinion, though he also considered that the appeal should be upheld on other grounds not relevant for present purposes.

23. Miles J dissented. His Honour was of the view that the allocation of a date for trial for the purposes of s 68B of the Supreme Court Act did not depend on the filing of an indictment upon which the accused person might be arraigned. Once a date was in fact allocated, the right to elect trial by judge alone had expired. In any event, the loss of an opportunity to choose trial by judge alone did not render the resultant trial by jury "unfair".

24. It should be noted that the opinion of Whitlam and Madgwick JJ is binding on this Court, even though the jurisdiction of the Court in this matter is being exercised by three judges.

25. That opinion does not, however, directly answer the question currently before this Court.

26. It does decide that the jurisdiction to first fix a hearing date for a trial within the meaning of s 68B(1), Supreme Court Act whether or not the court has set a date aside for the anticipated trial of the accused person, arises only upon the filing (or presentation) of an indictment.

27. The term "indictment" is defined by the dictionary (see s 4 of the Crimes Act 1900) (Crimes Act) to include any information presented or filed as provided by law for the prosecution of offences.

28. Section 68(1) of the Supreme Court Act is one such provision. Section 7 of the DPP Act is another such law.

29. The Attorney-General, the DPP or a person authorised by one or other (or both) of them may sign and then "present or file" an indictment. The court before which any such indictment is presented or filed may amend the same if it appears defective or order separate trials of counts or of persons accused therein (see s 264, Crimes Act). Multiple counts against the same accused are permitted by s 269, Crimes Act to be contained in an indictment.

30. Section 281 of the Crimes Act provides for a "trial" to commence after arraignment and a plea of "not guilty".

31. The legislation, in our view, clearly distinguishes between the existence of an "indictment", its "filing or presentation" and the "arraignment". Each of those events must have preceded, however immediately or otherwise, the trial of a person who has entered a plea of "not guilty" at arraignment.

32. It is clear, also, that an indictment not formally presented to the court, even if duly signed by a person authorised to do so, has no effect. No jurisdiction of the court is invoked, save perhaps the general supervisory jurisdiction of the court.

33. In R v Scott [1993] FCA 398; (1993) 42 FCR 1, Cooper J, at 26, commented that, if there is any "post-committal pre-indictment jurisdiction":

"...it is a jurisdiction to progress the criminal prosecution to an early hearing or conclusion and to ensure that an accused person receives a fair trial ... It is in a practical way the same jurisdiction exercised in the same way as it would have been exercised if the indictment had been presented to the court at an early date prior to trial."

34. However, apart from this form of jurisdiction, jurisdiction in a criminal matter apart from applications with respect to bail and, perhaps, applications to stay intended proceedings, is only enlivened by the presentation or filing of a duly signed indictment.

35. Even an application to stay intended criminal proceedings may depend on the filing or presentation of an indictment. Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 dealt with an application to stay a proposed but unpresented indictment.

36. Brennan J denied that the District Court possessed any jurisdiction to entertain such an application. His Honour said, at 36:

"Absent any special statutory investiture, the District Court has no jurisdiction in a criminal matter prior to the presentation of an indictment."

"The power to "find a bill of indictment" is no doubt intended to be the equivalent of the power of a grand jury to find and endorse "a true bill" on a bill of indictment which, being handed to the proper officer in court, becomes an indictment ... The power to find a true bill thus comprehends a power to sign or to authorize the signature of an instrument in the form of an indictment so that, on its presentation to the Court, an indictment is validly presented."

38. A court such as this court, being of general, not statutory, jurisdiction may be in a different position. It is not necessary to express a concluded view on that question.

39. Certainly, after committal, a decision by a prosecutor to present a nolle prosequi in respect of an indictment terminates the criminal proceedings in respect thereof (see R v Scott (supra)). The indictment is discharged without verdict whether or not it has been presented.

40. A quashed indictment also becomes a nullity (it is discharged). A new indictment must be signed and presented to enliven the court's jurisdiction to try the matter (see R v Derrick (1984) 29 NTR 9).

41. In R v Ferguson, ex parte Attorney-General [1991] 1 Qd R 35; (1990) 45 A Crim R 258, the Court accepted that an indictment was "pending" from its presentation until finally discharged. Connolly J said, at 37:

"Indictments are not presented in the Registry. Indictments after committal are presented to the Court ... Having been presented to a Judge of the Supreme Court or of District Courts in open Court they are in fact held ... by the Sheriff ... it is obviously of no particular moment in which office of the Court the physical custody of the indictment is reposed. That is a matter for the practice of the Courts in question, subject to any relevant Act of the Parliament and to the Rules of those Courts. Whatever system is adopted however the indictment once presented is obviously in the custody of the Court itself by its chosen officer."

42. The "laying of an information" for an indictable offence (an ex officio indictment) may be done by "filing" it (see R v Hull (1989) 16 NSWLR 385, 388; (1989) 41 A Crim R 262, 265, Gleeson CJ, Grove and Studdart JJ per Gleeson CJ). Consistently with Jago that means filing in court before a judge.

43. The "hearing" (or trial) of proceedings commenced by presentation of an indictment begins only after the "arraignment" has occurred - see Lane v R (1996) 66 FCR 144 (Gallop, Davies and Kiefel JJ).

44. For a right to an election for trial by judge alone to arise, there must be an indictment signed by an authorised person. Next, the signed indictment must be presented to a judge or filed in open court before a judge and then held by a duly authorised court officer. The indictment is then "presented or filed" and the criminal jurisdiction of the court in respect of the indictment and its disposition is enlivened.

"...no man is said to be arraigned, but merely at the suit of the King, upon an Indictment found against him, or other record wherewith he is charged. And there the arraignment of the prisoner is to take order, that he appear, and for the certainty of the person to hold up his hand, and to plead a sufficient plea to the indictment or other record, whereuon they which follow for the King may orderly proceed." (Co Litt 263a) (Note: the holding up of the hand has since been dispensed with.)

46. The arraignment is, therefore, the procedure by which the court charges the accused according to the indictment and a plea lawfully available is made (for example, "guilty", "not guilty", "autrefois acquit/convict").

47. If the plea is "not guilty" then a trial must be appointed to occur.

48. As to the setting of a trial date, after presentation of the indictment but before arraignment and plea, Whitlam J, in W (supra) at [71], accepted that, subject to procedural fairness, a date might validly be set for the trial, even though no arraignment had occurred:

"The relevant power to allocate a date was only enlivened when the indictment was filed in court ...."

49. In our view, that must be the intention behind s 68B. The section contemplates that, after a date is allocated and the election made for trial by judge alone, the accused may abandon that election and elect to be tried by a jury "... at any time before he or she is arraigned" (s 68B(2), Supreme Court Act). No further election may thereafter be made even if no date has been allocated at the time of the change of election - see s 68B(3), Supreme Court Act.

50. If it was otherwise, the court would not know until the arraignment and plea had been taken whether the accused had validly elected for trial by judge alone. If he or she then so elected, the possible change of election contemplated by s 68B(3), Supreme Court Act could not take place. Thus it must, at least, be possible for an accused validly to elect for trial by judge alone before arraignment. The question now is whether the fact that this accused has been arraigned and has entered a plea may now elect for trial by judge alone by reason of the setting aside of the previous convictions and sentences and the grant of an order for a new trial.

51. The power to award a new trial is statutory. Before then, to award a venire de novo required a finding that the trial first held was a mistrial. It was a consequence of that finding that the verdict found and judgment entered was annulled. The accused was returned to the situation where a bill of indictment had been found but not yet tried.

52. The jurisdiction to grant a writ of venire de novo has now been subsumed in the power to order a new trial conferred in general terms by statute - see R v Smith [1954] QWN 49.

"When a venire de novo was ordered the writ venire facias de novo juratores issued to the sheriff to summon anew the jurors ... a new notice of trial had to be given. ... It is certain that an order for a 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."

54. In R v Hanias (1976) 14 SASR 137, Bray CJ observed, at 145:

"And a court of criminal appeal, in my view, has the power to order a new trial, not only for the offence charged, but for any lesser offence of which the appellant could have been found guilty on the information laid against him."

55. Also at 145, Bray CJ cited with approval R v Miller [1951] VicLawRp 49; [1951] ALR 749, 760 in which the Full Court of the Supreme Court of Victoria, in ordering a new trial, noted that it could take place:

"... either on the existing presentment to which the accused has already pleaded or, at the option of the Crown, on a new presentment for manslaughter."

56. Some further elucidation may be gleaned from Thomas v R (No 2) [1960] WAR 129. In the latter case, it was contended that a new trial must be before a different judge.

57. Jackson SPJ (Hale J and Commissioner Boylson QC concurring), at 132, stated:

"The purpose of a new trial is to have the verdict of another jury, properly instructed as to the law. In our view, having regard to their respective functions, it is just as clear that there need not be a different judge as that there must be a different jury."

58. His Honour refers then to Stephen's Commentaries 8th ed., vol. 3, at p 579 where it is said:

"... if a fresh trial be ordered by the court, then a trial of the same issue (by a new jury, duly summoned and empanelled ...) is instituted de novo_."_

59. His Honour also refers to Blackstone (Book 3 at 391-2), which states:

"A new trial is a re-hearing of the cause before another jury; but with as little prejudice to either party as if it had never been heard before."

60. It seems to us that the result of the order for a new trial is that the accused is put back in the same position as if no trial had been held. Nevertheless, the Crown may elect to proceed on the indictment already filed and if the accused has pleaded to it (and adheres to the plea) the next step is to set a date for that new trial. The previous arraignment, if the Crown elects to proceed on the existing indictment, stands.

61. The choice by the accused of trial by judge alone arises before the date is set for the trial of counts contained in an indictment duly filed or presented, whether or not the accused has been arraigned. The relevant trial in this case, the first trial being held to have been defective, is the new trial.

62. Being a new trial, this accused is in the same position as if an indictment has been presented or filed and he has been arraigned but no date for the trial has yet been set.

63. In present circumstances, in our view, as the court has yet to allocate a date for this trial of the accused, he may validly elect for trial by judge alone. Even though, having been arraigned, the accused might not be able to change that election (s 68B(3)).

64. It is declared that the accused, Viet Dung Tran, has lawfully and validly elected for trial by judge alone.

I certify that the preceding sixty four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Crown: ACT Director of Public Prosecutions