Validity of the Indictment
44 The issue of statutory interpretation that arises in this case turns on the purpose or intention of Parliament, in the objective sense of purpose or intention applicable in this area of the law. Parliament always intends that its procedural stipulations will be complied with. That does not mean that it intends that every failure to comply with such a stipulation has the consequence that events subsequent to the failure are invalid. It is necessary to identify a legislative intent or purpose that that be so.
45 In Project Blue Sky supra, the High Court authoritatively established the approach, which the parties in this case have accepted, that is applicable to such an issue:
"[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the conditions. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."
46 The High Court reiterated the test, after criticising the use of the terminology of "mandatory" and "directory" requirements, and said:
"[93] … The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'."
47 There is a substantial body of case law in which technical defects in an indictment have resulted in invalidity of subsequent proceedings. Whether or not a defect with respect to the requirement for signature in s126 of the Act is also of that character is the issue that has arisen in this case.
48 Whether an indictment which was signed by a person who did not have an authority under s126(2) of the Act results in the invalidity of the indictment, and of the subsequent verdict, must be determined on the proper construction of the twofold requirement that an indictment "shall be signed" (s126(1)) and that the signature should be that of an authorised person (s126(1)(b)(ii) and s126(2)).
49 In the present case, the indictment was signed. Furthermore, the indictment was signed by the prosecutor. The defect was the absence of an authority to sign.
50 Section 5 of the Act, quoted above, is a provision that clearly falls within the proposition adumbrated in the majority joint judgment in John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508, although directed to the particular defect involved in that case, at 520:
"If an information is invalid for the reason that it fails sufficiently to identify the ingredients of the actual offence, it will be inadequate to satisfy a statutory requirement … that proceedings be commenced by information since, as a matter or ordinary construction, such a requirement can only be satisfied by a valid information."
51 A similar conclusion is appropriate with respect to the use of the word "indictment" in ss8, 126, 129 and 130.
52 Most of the functions performed by the process which initiates criminal proceedings, particularly an indictment for serious offences, have been fully satisfied by the precise terms of the charge appearing, as it does, in the same form in the various indictments. These include:
(i) Informing the court of the precise identity of the offence with which it is required to deal ( John L Pty Ltd supra at 519).
(ii) Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients ( John L supra at 519).
(iii) Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law ( S v The Queen (1989) 168 CLR 266 at 284, 285).
(iv) Determining the availability of a plea of autrefois acquit and autrefois convict ( S v The Queen supra at 284; Walsh v Tattersall (1996) 188 CLR 77 at 90, 110-111).
53 Of particular significance for the present case is a fifth function performed by an information:
(v) To invest the trial court with jurisdiction to hear and determine the prosecution ( John L supra at 519).
54 The issue of validity in this case most clearly arises under s130(2) of the Act. Was the general jurisdiction of the District Court with respect to indictable offences, conferred by s46(2), invoked with respect to the Appellant by the 'presentation' of an "indictment" within the meaning of s130(2)? For this purpose, is the signature of the prosecutor enough or is it essential that the person have actual authority to sign?
55 The critical significance for the fairness of the criminal justice process of the role of an indictment set out as (i) to (iv) in par [52], above, suggests that the courts will, subject to the operation of s16 and s17, readily conclude that any failure to observe a requirement which impinges on such matters was intended by Parliament to result in invalidity. In my opinion, non-compliance with s126 is not of this character. In the case of a failure which impinges on the jurisdictional purpose, identified as (v) in par [53] above, the position is not so clear in the case of a defect of the character presently under consideration. This is particularly so after a plea has been entered, let alone after a trial and verdict. I do not, in this regard, rely on any notion of waiver, on which issue I agree with Wood CJ at CL. These are relevant circumstances with respect to which the intent or purpose of Parliament must be assessed.
56 The issue can be tested by looking at the obverse case: if an accused had been acquitted after trial on an indictment signed by Ms Traill could s/he plead autrefois acquit or would s/he need to rely on the exercise by the Court of its discretion to prevent abuse of its process?
57 Once the issue is posed in this way, it is easier to conclude that Parliament did not intend that every defect with respect to the signature would result in the invalidity of the indictment, so that it was not an indictment, most relevantly, for the purposes of the conferral of jurisdiction under s130(2). Does the defect that occurred here - the absence of authority to sign - have the consequence that the indictment was invalid in that sense? There are reasons which suggest a negative answer and others which suggest a positive answer. My mind has fluctuated about where the balance lies.
58 Mr G Smith SC, who appeared for the Crown, submitted that the Court should approach the issue of essentiality with respect to s126 in the light of the prior common law. He submitted that at common law a signature on the indictment was not essential. He relied on the decision of the Full Court of the Supreme Court of New South Wales in R v Painter (1870) 9 SCR 277, where the Crown Prosecutor overlooked signing the indictment.
59 The entirety of the judgment in Painter is as follows:
"The conviction is not vitiated by the irregularity. The reason why informations are signed is to identify the prosecutor; and if he prosecutes personally, his signature to the information exhibited by him does not seem to be absolutely necessary. At all events, the prisoner waived the objection by pleading to the information."
60 Painter was applied by the Federal Court of Australia in Australasian Meat Industry Employees Union v R G Gilbertson (Qld) Pty Ltd (1988) 26 IR 237 at 246-247.
61 Mr Smith SC submitted that the reasoning in Painter reflected the position at common law and relied on the principle of statutory interpretation, that Parliament is presumed not to intend to change the common law, unless the legislation indicates that that was intended with "irresistible clearness". Reliance was placed on the judgment of this Court in R v Downs (1985) 3 NSWLR 312 at 321-322 and on the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia in R v Khammash (2004) 147 A Crim R 129 at 148-150.
62 The principle of statutory interpretation relied on by the Crown is, in my opinion, now of minimal weight. It reflects an earlier era when judges approached legislation as some kind of foreign intrusion. The scope and frequency of legislative amendment of the common law, including the common law of criminal procedure, has over many decades been both wide ranging and fundamental.
63 In Bropho v Western Australia (1990) 171 CLR 1 the High Court referred to a principle of statutory interpretation that was based on an assumption that Parliament would not act to achieve a particular result without making its intention clear. The Court said at 18:
"If such an assumption be shown to be or to have become ill founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed."
64 In Bropho, the Court concluded that the presumption that legislation did not intend to bind the Crown had been so modified. The presumption relied upon by the Crown in the present case has also, in my opinion, come to be modified or, at least, diminished in significance. The test of "irresistible clearness", or equivalent, to which some authorities refer is too stringent in contemporary circumstances.
65 Kirby J has often emphasised the duty of courts to obey a legislative text and has indicated that it is not permissible to adhere to pre-existing common law doctrines in the face of a statute. (See e.g. Regie Nationale des Usines Renaud SA v Zhang (2002) 210 CLR 491 at [143]-[147].) McHugh J has stated that the presumption that a statute is not intended to alter or abolish common law rights must now be regarded as weak. (See Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290 at [28]-[30]; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at [36].) His Honour has, however, said that the presumption continues to operate with some strength when fundamental legal principles or fundamental rights are involved. (See Gifford supra at [36]; Malika Holdings supra at [28] and see also at [29]-[30] and Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers Union [2004] HCA 40; 78 ALJR 1232 at [19].)
66 The reasoning of McHugh J reflects a strong line of authority in the High Court that Parliament does not intend to alter or restrict fundamental rights, freedoms and immunities. This line of authority commences with Potter v Minahan (1908) 7 CLR 277 at 304 and is affirmed in Bropho v Western Australia supra at 17-18; Coco v The Queen (1994) 179 CLR 427 at 437; Electrolux supra at [21]; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [30]; Al-Kateb v Godwin [2004] HCA 37; 78 ALJR 1099 at [19], [150].
67 In R v Downs (1985) 3 NSWLR 312, on which the Crown relied in the present case, Lee J referred to the judgment of Potter v Minahan and noted that O'Connor J in that judgment had referred to passages in Maxwell on Interpretation of Statutes in the 4th edition. He then quoted, what his Honour said was, the parallel section in the 12th edition of that work.
68 The 12th edition referred to an assumption that Parliament would not "depart from the general system of law without expressing its intention with irresistible clearness". However, the 4th edition of Maxwell On Interpretation of Statutes quoted by O'Connor J in Potter v Minahan and which has subsequently been referred to on numerous occasions with approval, is not the same as the 12th edition quoted in Downes. It referred to the improbability that Parliament would "overthrow fundamental principles, infringe rights or depart from the general system of law". This provides a quite different focus to that suggested by the 12th edition. In R v Khammash (2004) 147 A Crim R 129, the Full Court of the Supreme Court of South Australia relied on the original text and on the judgments of the High Court in Bropho and Coco which focus on fundamental rights and principles (see at 148-149).
69 The provisions of the Act under consideration in the present case, relating as they do to the authority to sign an indictment, do not infringe fundamental rights and principles and, in my opinion, the principle of statutory construction upon which the Crown relies does not have any application in the present case.
70 The submission of the Crown set out above is based on the assumption that R v Painter supra, represents a common law doctrine. That is not, in my opinion, the case. The decision in Painter may, however, be relevant on a different basis.
71 In Painter, the Court was considering s25 of the Criminal Justice Amendment Act 1852 (16 Vic, No 18), on which the Crown relied, as noted in the report of Painter at 277. This is the predecessor of s17 of the Act, to the effect that an objection to "any formal defect apparent on the face" of an indictment is to be taken by demurrer or motion to quash before the jury is sworn. Painter, in my opinion, is authority for the proposition that the absence of a signature is a defect which is "apparent of [the] face" of an indictment. That is what is referred to by the word "irregularity" in the first sentence of this judgment.
72 The significance of an authorised signature on an indictment has been considered in England in a different, albeit analogous, statutory context. Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (UK) provided:
"2(1) Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence, and where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly. Provided that if the judge … of the court is satisfied that the said requirements have been complied with, he may, on the application of the prosecutor or of his own motion, direct the proper officer [of the court] to sign the bill and the bill shall be signed accordingly.
(2) Subject as hereinafter provided no bill of indictment charging any person with an indictable offence shall be preferred unless
…
(b) the bill is preferred by the direction or with the consent of a judge of the High Court …"
73 In R v Morais (1988) 87 Cr App R 9 the bill of indictment was never signed by a proper officer of the court. The English Court of Appeal held that this constituted a fundamental defect in the trial. Lord Lane CJ said:
"It seems to us that this Act was intended, so to speak, to fill the gap which was left by the abolition of the grand jury. It was intended to ensure not only that the proper requirements had been fulfilled before a trial proper could start, but that also there should be a certification by way of the signature of the proper officer to indicate that he had inquired into the situation and satisfied himself that the requirements of the subsection had properly been complied with. We have come to the conclusion therefore that it is not merely a comparatively meaningless formality that the property officer's signature should be appended, but it is, as the words of the Act itself prima facie indicate, a necessary condition precedent to the existence of a proper indictment, that the bill should be signed and only then and thereupon does it become an indictment.
Therefore in the present case there was no valid indictment, there was no valid trial, no valid verdict and no valid sentence."
74 His Lordship's reference to the "words of the Act" indicating that signature is a "necessary condition precedent", is a reference to that part of s2(1) which states that when the court officer does "sign the bill … it shall thereupon become an indictment". The statute under consideration in the present case is quite different. (I should note that there was no reference in Morais to any equivalent of s17 of the Act.)
75 The issue arose again in the England and Wales Court of Appeal (Criminal Division) in R v Jackson (1997) 2 Crim App R 497. In that case, the trial court had stayed certain indictments, but made orders permitting a fresh indictment to be issued to cover the same relevant charges. The judge directed the clerk of the court to sign the new indictment, pursuant to the proviso in s2(1) of the 1933 Act, which was, relevantly, still in the same terms set out above. However, the clerk of the court overlooked the need to sign in accordance with his Honour's directions.
76 The Court distinguished Morais. It held that the failure in Jackson did not invalidate the trial. The judgment referred to the fact that the earlier indictments, which were to be substituted, had been duly signed and that accordingly the "requirements of the section had been met". That is the same as in the present case with the Fox indictment.
77 In Jackson the Court gave particular weight to the fact that the judge had exercised the discretion found in the proviso to s2(1). This distinguished the case from Morais. In Jackson, the court officer failed to sign the bill in accordance with the judge's directions. Unlike Morais, the relevant decision-maker - in Jackson the judge - had turned his mind to whether or not the indictment should be signed and had decided it should be. All that was required, the Court of Appeal said, was a mere "clerical step". The court adapted the language of Lord Lane in Morais and said that this was a "'meaningless' clerical 'formality'" (p503).
78 The judgment of Lord Lane in Morais is perfectly consistent with the test propounded by the High Court in Project Blue Sky. So, in my opinion, is the determination in Jackson that a Project Blue Sky test would not be satisfied on the facts of that case. In each case, the Court adopted a purposive approach to statutory interpretation. In Morais the parliamentary intention that an officer turn his or her mind to the question of whether or not the requirement had been satisfied was not achieved. That purpose was, however, satisfied in Jackson by the judge. Accordingly, the purpose of the procedural requirement had, in fact, been served and in those circumstances Parliament did not intend the failure to lead to invalidity of the process.
79 Sections 16 and 17 of the Act, set out above, represent a list of defects which would have led to invalidity at common law but which, by longstanding statutory provision, do not do so. Although the particular defect in issue in the present case does not fall within either section, the scope of these provisions is so wide that it can support the proposition that Parliament did not intend that every other defect, however or whenever occurring, should deprive an indictment of its character as such for purposes of other sections of the Act.
80 The decision in Painter does suggest that the absence of any signature on the indictment would be "a formal defect on [its] face" within s17 of the Act. In this case, the Crown could not rely on s17 because Ms Traill's signature did appear on its "face".
81 It is unlikely that Parliament intended that an indictment on which no signature of any kind appears would be valid after the jury is sworn, by force of s17, but would be invalid if there was a signature, by a prosecutor who did not have authority to sign. It may be, as Howie J suggests, that s126 has the effect that s17 must be interpreted differently to its predecessors so that the absence of a signature is not now to be regarded as a "formal defect" within the section. It is not necessary to decide this point. Even if there be an incoherence in this respect, it remains only one factor to be weighed in the balance.
82 There are two other factors which tend to support a conclusion upholding the validity of the conviction: the position of Ms Traill and the Fox indictment.
83 Ms Traill appeared on behalf of the Director of Public Prosecutions pursuant to the provisions of s21 of the Director of Public Prosecutions Act 1986. That Act was a cognate piece of legislation with the Act presently under consideration. She was instructed to appear in the case by the very repository of the power conferred by s126(2).
84 A second factor is the existence of the Fox indictment. That was the basis of the first trial. It was signed by a person authorised to do so. It remained on the Court file. It was not, however, the document upon which the trial proceeded. With respect to s130(2), the pre-condition for jurisdiction that a valid indictment be 'presented' was satisfied, but not the pre-condition that the Appellant should be arraigned on that indictment.
85 Section 20 of the Act, which is concerned with amendment of indictments after presentment, refers to "the substitution of an indictment". There is no express provision for 'substitution', but the replacement of one indictment by another renders the former irrelevant to the subsequent trial. (R v Taylor [2003] NSWCCA 194.) The Crown's submission in this Court that Taylor decided that that later indictment had not been substituted for the first is the opposite of what was in fact decided. In the present case also the Traill indictment was substituted for the Fox indictment.
86 The Crown submitted to this Court that, in substance, the Appellant was arraigned and tried on the Fox indictment, of which the Traill indictment was simply a copy. Plainly that did not happen in either substance or form. (See R v McNamara (No 2) [1997] 1 VR 257 esp at 268-270; R v TSR (2002) 5 VR 627 at [3]-[4], [34], [38].) There can only be one indictment in any one trial. (See R v Landy [1943] VLR 73; Munday v Gill (1930) 44 CLR 38 at 87; R v Tagaras NSWCCA (Unreported, New South Wales Court of Criminal Appeal, McClemens CJ at CL, Begg and Slattery JJ, 9 April 1974); R v Howard (1992) 29 NSWLR 242 at 247-248.)
87 However, there was no difference in the charge on the two indictments. Again, the breach was of no practical significance. Indeed, as Mr H Dhanji, who appeared for the Appellant, properly conceded, his client suffered no prejudice.
88 Although, in my opinion, the Crown cannot rely directly on the Fox indictment, its existence is of significance as a relevant circumstance for purposes of the Project Blue Sky test. The District Court had been invested with the relevant jurisdiction under s130(2), but that indictment was not the basis of the ultimate trial. The Court in fact exercised jurisdiction on the basis of the presentment of and arraignment under the Traill indictment.
89 I turn to the reasons which support a finding of invalidity. In the event, I have come to the conclusion that, on balance, that should be the result.
90 The strongest argument in favour of the proposition that an actual authority to sign constitutes an essential element of the validity of every indictment, most relevantly for purposes of investing the District Court with jurisdiction, is the criminal pleading context of the relevant provisions. The criminal law is one of the last areas of the law in which a technical point is still a good point. Parliament can be taken to act on the basis that the common law has, subject to statutory exceptions, traditionally required punctilious compliance with the requirements of criminal procedure. (See R v Birlut (1995) 39 NSWLR 1 at 5-6; R v Deng (1996) 91 A Crim R 80 at 85-86.) However, that does not necessarily lead to the conclusion that there has been no change in judicial attitudes in this respect.
91 In the context of determining that the traditional strictness remains applicable with respect to the rule against duplicity in indictments, Kirby J said:
"Just as in civil procedure there has been a loosening of the rigidities of technical rules where these would defeat the merits, so in criminal procedure and pleadings, there has been, to some extent, a retreat from technicality. This is evidenced in Australian decisions such as Byrne v Baker (1964) VR 443 at 448 and in England by Merriman v R (1973) AC 584. Allowing for their different history and purposes, it is desirable that the same rationality and concern with justice should inform criminal as well as civil pleading and procedure." ( Walsh v Tattersall supra at 105)
92 A textual indication of the significance of the requirement of a valid authority, as emphasised in the reasoning in Halmi quoted above, is s126(3). The presumption that an indictment was signed by an authorised person operates only "in the absence of evidence to the contrary". The ability to prove that there was no valid authority is reinforced by s126(4) which makes a certificate that a person had such authority evidence of the matters so certified. However, the certificate is not conclusive evidence. Parliament has, accordingly, specifically directed its attention to the possibility that evidence may be adduced indicating that authority to sign is absent.
93 Such evidence would be pertinent to the determination of an application to stay or set aside an indictment before plea, or during the trial, or to the determination of whether or not an indictment has been presented within the time stipulated by, or under, s129 of the Act. If there has been no valid indictment presented within that time, then the Court's discretion to make orders under s129(4) arises. The Appellant's submission that s126(3) would be otiose unless the absence of an authorised signature rendered the indictment invalid for all purposes should be rejected. Nevertheless, there is no textual reason why such evidence should be restricted to s129 and not extend to s130. The significance of s126(3) was recognised in the judgment in Halmi.
94 The focus of the present case is upon the act of signature. This step in the process does not have the same quality of essentiality that the finding of the bill or the formulation of the charge has. The legislative purpose of requiring a signature on an indictment has been described by Young CJ as being "in order to authenticate it". (R v Parker [1977] VR 22 at 24.55.) The position was the same with respect to a bill of indictment found by a grand jury which was valid even though not signed at all, as required, "because there can be no doubt of its authenticity". (See Jane Denton's Case (1823) Lew CC 53 at 54, applied in Guiseppe Sidoli's Case (1833) Lew CC 55.) To similar effect is the purpose of a signature on an indictment stated in R v Painter supra, namely: "to identify the prosecutor". A purpose of this character does not suggest that, where the indictment is otherwise "authentic", or the prosecutor is otherwise identified, the legislature intended that a defect in the signature process would lead to invalidity. Such a statutory purpose appears to be satisfied in this case.
95 However, a similarly worded provision in another legislative scheme may have additional purposes. That appears to be the case with s126.
96 I have read Justice Howie's judgment in draft. His Honour provides an extensive analysis of the scope and purpose of the 1987 legislative scheme which altered the basis of prosecutorial authority in this State. It was in this context that the legislative predecessor of s126 was introduced for the first time. This context must be taken into account for purposes of determining the intention of Parliament with respect to non-compliance with the stipulation that an indictment be signed by an authorised person. (See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 78 ALJR 585 at [11].)
97 His Honour's analysis indicates that s126 had as its primary purpose the objective of ensuring that the new office of the Director of Public Prosecutions, subject only to the Attorney General's powers, would be in control of the process of instituting criminal proceedings on indictment and that that would be manifest to all parties to the proceedings. This purpose requires precise compliance with the formulated stipulation in s126(1)(b)(iii) and s126(2). For this reason, I have come to the conclusion that Parliament did intend that the defect in compliance which has occurred in this case should lead to invalidity.
98 This is an unfortunate result. The Appellant received a fair trial. The technicality on which he has succeeded was of no practical significance. This is the kind of result that adversely affects public confidence in the administration of criminal justice by giving the public the impression that the system is just a forensic game. Nevertheless, for good reason, the courts have always insisted on punctilious compliance with legal formalities which have any substantive purpose, before the State imposes the stigma of a criminal conviction on any citizen. That longstanding policy of the law should not be changed without clear and unambiguous parliamentary authority.
99 It may be that the Parliament should revisit and expand the list of defects in s16 and s17 which do not lead to invalidity. That list is now over a century old.
100 This ground of appeal should be upheld.