Wang v The Queen [2020] VSCA 326

CRIMINAL LAW - Indictment filed against applicant in draft and unsigned form - Whether indictment valid - Indictment did not engage power in s 420D of Criminal Procedure Act 2009 to make order that charges against applicant be tried by trial judge alone - Leave to appeal from judge's decision refused - Criminal Procedure Act 2009 ss 6(1), 159(3)(b), 162.

WORDS AND PHRASES - 'One or more charges in an indictment' - 'Each accused consents to the making of the order' - Criminal Procedure Act 2009 s 420D.

1 On 10 June 2020, the applicant was committed to stand trial in the County Court on aggravated carjacking and other charges. An unsigned, 'draft' indictment containing charges of aggravated carjacking (charge 1),[1] armed robbery (charge 2)[2] and possession of a drug of dependence (charge 3 - cocaine;[3] charge 4 - cannabis L[4]) was filed in the County Court. That document did not comply with a direction made by a judicial registrar of that Court and was not an indictment signed by the DPP or a Crown Prosecutor in conformity with s 159(3)(b) of the Criminal Procedure Act 2009 ('CPA').

2 The prosecution alleges that the offending the subject of charges 1 and 2 was committed by the applicant with three co-offenders: her former partner, Omar Kakar, and Mr Kakar's sisters, Nazo Kakar and Sarah Azimi. On 10 June 2020, the applicant opted to proceed by way of a straight hand-up brief committal. The committal hearing for Mr Kakar and Ms Kakar is scheduled for 9 February 2021. On 9 June 2020, Ms Azimi pleaded guilty to one charge of armed robbery and one summary charge of harassing a witness and, on 17 June 2020, she was sentenced by a judge of the County Court.[5]

3 On 3 August 2020, the applicant applied under s 420D(2)(b) of the CPA for an order that the charges be tried by the trial judge alone. Section 420D(1) sets out four preconditions for the making of an order that 'one or more charges in an indictment be tried by the trial judge alone'. One of the preconditions, in s 420D(1)(b), is that 'each accused consents to the making of the order'. The applicant submitted that, as she is the only accused named on the indictment filed with the County Court, that precondition was satisfied.

4 On 4 November 2020, a judge of the County Court refused the applicant's application.[6] The judge held that the precondition in s 420D(1)(b) was not satisfied because Mr Kakar and Ms Kakar, if committed for trial, will become the applicant's co-accused in a new indictment to be filed over by the prosecution, and they have not consented to the proposed order.

5 The applicant now seeks leave to appeal against that decision pursuant to s 420H on the following ground:

The learned judge below erred in holding that the reference to '[each] accused' in section 420D(1)(b) is a reference to each accused the prosecution intends to proceed to trial on a single indictment. As a consequence, His Honour erred in determining the pre-condition set out in section 420D(1)(b) has not been established.

6 Prior to the hearing of the application for leave to appeal, we directed the Court of Appeal Registry to send the following email to the parties:

The bench allocated to hear this matter has requested that the parties file brief written submissions ... dealing with the question of whether the County Court had jurisdiction to make an order under s 420D of the [CPA] having regard to the fact that the indictment was not signed by the DPP or a Crown Prosecutor in the name of the DPP, as required by s 159(3)(b). In dealing with this question, the parties should address: whether noncompliance with s 159 meant that the indictment was invalid and whether the reference to 'one or more charges in an indictment' in s 420D(1) is to a valid indictment. The following cases may be of assistance to the parties in addressing these issues:

• R v Evans [1964] VicRp 92; [1964] VR 717, 721-2;
• R v Parker [1977] VicRp 3; [1977] VR 22, 24, 29;
• R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263, 271 [34]; [2005] NSWCCA 2;
• R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10, 27-8 [89]-[90], 29 [97], 39-40 [201]-[205], 53 [263]-[264], 54-5 [271]-[274]; [2005] NSWCCA 281;
• DPP v Phillips (2018) 361 ALR 635, 639 [14], [16], 641 [22]; [2018] VSC 447.

7 As appears from [10] below, s 420L(1) provides that, unless this Court gives either party leave to make further submissions, the parties are confined to the submissions they made before the judge. At the hearing of the application for leave to appeal on 17 December 2020, we granted the parties leave to make further submissions, including in relation to the jurisdictional issue raised in the email from the Court's Registry.

8 At the conclusion of the hearing of the application for leave to appeal on 17 December 2020, we made an order refusing leave and stated that we would publish reasons for that order on 18 December 2020. These are our reasons.

9 Sections 420D, 420H and 420L, to which we have referred, are in pt 9.2 of ch 9 of the CPA. That chapter was inserted into the CPA on 25 April 2020 by the COVID-19 Omnibus (Emergency Measures) Act 2020 in order to provide for temporary legislative measures to deal with problems arising from the COVID-19 pandemic.[7] Under s 420ZN, ch 9 will cease having effect on 26 April 2021.

10 For present purposes, the relevant provisions of ch 9 are as follows:

420B Application of Part [9.2]

This part applies if -

(a) an accused is committed for trial under Chapter 4; or

(b) a direct indictment is filed against an accused.

...

420D Court may order trial by judge alone

(1) At any time except during trial, the court may order that one or more charges in an indictment be tried by the trial judge alone, without a jury, if -

(a) each charge is for an offence under the law of Victoria; and

(b) each accused consents to the making of the order; and

(c) the court is satisfied that each accused has obtained legal advice on whether to give that consent, including legal advice on the effect of the order; and

(d) the court considers that it is in the interests of justice to make the order.

(2) The court may make an order under subsection (1) -

(a) on its own motion; or

(b) on application by the prosecution or an accused.

(3) In determining whether to make an order under subsection (1), the court must have regard to the submissions, if any, of the prosecution.

(4) However, the court may make an order under subsection (1) whether or not the prosecution consents to the making of the order.

...

420G Meaning of decision regarding trial by judge alone

...

decision regarding trial by judge alone means -

(a) a decision of the court to make an order under section 420D; or

(b) a decision of the court to refuse an application for an order under section 420D.

420H Right of appeal against decision regarding trial by judge alone

A party to a proceeding in which the court makes a decision regarding trial by judge alone may appeal to the Court of Appeal against that decision if the Court of Appeal gives the party leave to appeal.

420I When leave to appeal may be given

(1) [T]he Court of Appeal may give leave to appeal against a decision regarding trial by judge alone only if the court is satisfied that it is in the interests of justice to do so.

...

...

420L Determination of appeal

(1) An appeal against a decision regarding trial by judge alone is to be determined on the basis of -

(a) submissions made by the accused and the prosecution to the trial judge in relation to the decision; and

(b) if the Court of Appeal gives either party leave to make further submissions, those submissions.

(2) On an appeal under section 420H, the Court of Appeal -

(a) may affirm or set aside the decision regarding trial by judge alone (the original decision); and

(b) if it sets aside a decision not to make an order under section 420D, may make that order; and

(c) must remit the matter to the court that made the original decision for trial.

11 Section 159(3)(b) provides that an indictment 'must ... be signed by the DPP or a Crown Prosecutor in the name of the DPP'.

12 Section 420R provides that a decision by a trial judge to make, or not to make, an order under s 420D is not an 'interlocutory decision' for the purposes of the CPA.

Prosecution case against the applicant and the alleged co-offenders

13 The judge described the prosecution case against the applicant and the alleged co-offenders as follows:

Prosecution case

Given that the contested committal hearing has not yet occurred, any attempt to state in definitive terms what the prosecution case is would be unwise.

However, for present purposes, the prosecution allegations may be briefly stated as follows.

At approximately 9:30 pm on 19 November 2019, while the two male complainants were seated in a Mazda vehicle parked in a Doveton street, the applicant's boyfriend, Omar Kakar, drove to the scene in a Volkswagen vehicle which he parked behind the Mazda. He then got out and, while armed with a firearm, got into the rear seat of the Mazda. He then proceeded to demand that the two complainants give him everything that they had. During the course of the incident, Mr Kakar is alleged to have discharged the firearm towards the windscreen and obtained cash from one of the complainants and a mobile phone from the other. He then directed them to get out of the Mazda and, after they complied, he got into the driver's seat and drove away from the scene. Charges 1 and 2 are put in the alternative and relate to the Mazda vehicle.

At 11:10 pm that evening, it is alleged that Mr Kakar was seen driving the stolen Mazda with one passenger on board, namely the applicant. At 11:30 pm, police located the vehicle parked outside 36 Blossom Drive in Doveton.

The prosecution alleges that Mr Kakar and the applicant both lived at 36A Blossom Drive at the relevant time. They executed a search warrant at that address on the following day, during which a quantity of cocaine and cannabis was found. It is those drugs that form the basis for the two possession charges laid against the applicant.

Police also located, seized and examined a CCTV hard drive. What it allegedly shows in relation to the events of 19 November, includes the following:

• At 9:20 pm, the applicant and the three co-offenders exit the address and approach the Volkswagen from which Mr Kakar retrieves the subject sawn-off longarm from the boot while being watched by the others. All four offenders then leave in the vehicle which was being driven by Mr Kakar;

• At 10:08 pm, the Volkswagen returns to the address with Ms N Kakar driving and Ms Azimi a passenger;

• At 11:10 pm, headlights can be seen on the opposite side of number 17. The applicant and Mr Kakar can be seen running from the vicinity of number 28 back to the front door of their home at number 36A. They did not stay there that night but returned at 2:10 pm on the following day.

The applicant and Mr Kakar were arrested that afternoon at number 36A. They were interviewed and released pending further enquiries. The applicant's mobile phone was seized by police.

In her interview, the applicant denied any involvement in the alleged offending the previous evening, claiming that she was at her aunt's house in Dandenong for most of that evening. She denied knowing anything about the stolen car located in the vicinity of number 36A. She also told police that she could not remember anyone calling her mobile on the previous evening. The applicant was arrested and re-interviewed on 4 December. On that occasion, she again indicated that she had been at her aunt's house on the night in question although she is also alleged to have made a number of inconsistent statements.

The prosecution seeks to rely on what they say are a number of deliberate lies told by the applicant when interviewed by police as implied admissions of guilt in relation to the offending alleged in charges 1 and 2. For the same purpose, they also seek to rely on the fact that she stayed away from her address overnight. A notice of post-offence incriminating conduct has been filed to that effect in accordance with section 19 of the Jury Directions Act 2015.

The prosecution case against the applicant in relation to charges 1 and 2 is put on the basis that she was 'involved in the commission' of one or other of those offences in any of the following ways:

• She intentionally assisted or encouraged Mr Kakar to commit the offence; or

• She intentionally assisted or encouraged Mr Kakar to commit another offence where she was aware that it was probable that the offence would be committed in the course of carrying out the other offence; or

• She entered into an agreement, arrangement or understanding with Mr Kakar to commit the offence; or

• She entered into an agreement, arrangement or understanding with Mr Kakar to commit another offence where she was aware that it was probable that the offence would be committed in the course of carrying out the other offence.

Defence response and issues in dispute

As the defence response of 3 August 2020 makes clear, there is no issue that Mr Kakar committed the offence of aggravated carjacking on the evening of 19 November 2019 while Ms Azimi and Ms Kakar were seated in the Volkswagen that Mr Kakar had driven to that location. Nor is there any dispute that the CCTV footage shows the applicant and those three leaving 36A Blossom Court together at 9:20 pm and the applicant at that address at 11:10 pm.

However, where the applicant was and what she was doing between 9:20 pm and 11:10 pm is in issue. In particular, it is in issue that the applicant was in the Volkswagen or otherwise physically present at the time that Mr Kakar committed the aggravated carjacking offence, that she was in any way complicit in the actions of Mr Kakar, and that she was ever in the stolen Mazda.

As for the drug possession charges, it is in issue that the applicant was ever in possession of the drugs found. In that context, it is relevant to note that it is also in issue that the applicant was living at the address where the drugs were found. She admits attending there very frequently but denies living there.

The defence do not dispute that the applicant told some deliberate lies when interviewed. However, the extent of the lies told according to the prosecution is in issue as is the claim that they amount to an implied admission on the applicant's part. That claim and other issues of relevance and admissibility of some of the evidence have been flagged as matters for pre-trial argument and ruling.[8]

14 The applicant was re-arrested on 4 December 2019 and, on the same day, she was charged and remanded in custody. She has never applied for bail and remains on remand.

15 The applicant's alleged co-offenders were also charged. As we have already stated, Ms Azimi pleaded guilty and was sentenced on 17 June 2020.

16 The applicant, Mr Kakar and Ms Kakar were scheduled to face a contested committal hearing on 10 June 2020. As we have already stated, on that day, the applicant waived her right to a contested committal hearing and proceeded by way of a straight hand-up brief committal. After entering a plea of not guilty, she was committed to the County Court for trial. Due to the COVID-19 pandemic, the committal hearing against Mr Kakar and Ms Kakar could not proceed on 10 June 2020 and was adjourned until 9 February 2021.[9]

17 The proceeding against the applicant commenced upon the filing with a registrar of the Magistrates' Court of a charge-sheet containing the charges.[10] That proceeding continued in the County Court.[11] In accordance with the procedures set out in the document titled Emergency Protocol COVID-19: Administrative Case Management, the proceeding was given an administrative trial holding date of 25 April 2022.

18 At the initial County Court directions hearing on 8 July 2020, a judicial registrar directed that the prosecution file 'the signed Trial Indictment', prosecution opening and any relevant statutory notices. On 27 July 2020, the prosecution filed an unsigned indictment with a 'draft' watermark charging the applicant with the offences set out at [1] above, together with a prosecution opening and a notice of evidence of incriminating conduct. Regrettably, that draft, unsigned indictment did not comply with the judicial registrar's direction. Whilst the prosecution's motive for the noncompliance, as set out below, may have been well-meaning, it has caused serious prejudice to the course of the proceeding in the County Court and this Court.

19 The indictment was unsigned and in draft form because it did not reflect how the prosecution intends to proceed in the event that one or both of Mr Kakar and Ms Kakar are committed for trial and plead not guilty. In that event, the prosecution intends to file over a new indictment naming the applicant and Mr Kakar and/or Ms Kakar, as the case may be, as accused. It is estimated that the trial of the charges in any such indictment will not take place before a jury until 2022. The applicant applied for an order that the charges in the unsigned indictment be tried by the trial judge alone in the expectation that such a trial would take place more expeditiously.

20 As we have already stated, on 4 November 2020, the judge refused the applicant's application. Subsequently, on 9 December 2020 - being the second last day for filing an indictment without an extension of time pursuant to s 163(1) - the prosecution filed a further indictment in the same terms as the initial indictment except that it was signed by a Crown Prosecutor and did not contain a 'draft' watermark.[12]

21 The judge held that the requirement in s 420D(1)(a) - that each charge is for an offence under the law of Victoria - was satisfied.[13] He found that the requirement in s 420D(1)(b) that each accused consents to the making of the order - and the related requirement in s 420D(1)(c) that each accused has obtained legal advice - were not satisfied.[14] He stated that, having regard to his finding in relation to the requirements in s 420D(1)(b) and (c), it was not necessary for him to deal with the 'interests of justice' requirement in s 420D(1)(d).[15]

22 The judge summarised the parties' submissions in relation to s 420D(1)(b) as follows:

The applicant's submission

The applicant's counsel has submitted that the fact that there are three alleged co-offenders is no bar to this application as none of those persons are charged as an accused in the only indictment that is currently filed with this court. As the filed indictment refers only to the applicant, it is only in respect of her that the requirement set out in s 420D(1)(b), and for that matter the related requirement in sub-section (c), must be established. Any other interpretation would create unintended and undesirable anomalies, such as the need for a co-accused to provide their consent notwithstanding that they may have pleaded guilty, or be having their guilt of the charged offences determined in a different jurisdiction. Or, where multiple co-offenders are charged on different dates and/or have their cases progress to the trial court at different speeds, an accused who wishes to make an application for trial by judge alone may have to wait an inordinate time before being able to do so.

In his written submissions, the applicant's counsel drew the court's attention to the NSW decision of R v Jenkin. In that case, the trial judge granted an application for trial by judge alone in circumstances where alleged co-offenders were to be tried by jury.

The respondent's submission

For their part, the prosecution emphasises the fact that at no time have they ever agreed to or intended to try the applicant separately to any of her co-offenders in the event that any or all of them are committed for trial and plead not guilty. Rather, the prosecution always intended to charge all of those people who are committed for trial in the one indictment. In the event that more than one intends to plead not guilty, then the prosecution would be seeking to proceed with a joint trial not separate trials for each accused. In that context, the prosecution relies on the usual and well known authorities regarding the general rule in favour of joint trials in the absence of sound and compelling reasons to justify ordering separate trials.

As regards the fact that there is an unsigned indictment charging just the applicant currently before the court, the prosecution points out that such a situation only arose because of the court's desire to try and case manage all new initiations at an early stage while jury trials are not proceeding. The aim being to identify those cases which are capable of resolving and to have those that aren't in a 'trial ready' state as soon as possible.

In that sense, the prosecution submitted that the applicant's attempt to take advantage of the fact that there was an indictment which had been filed only in respect of the applicant had an air of artificiality and opportunism about it since the prosecution could hardly seek to file a single indictment in respect of the applicant and the two co-offenders in advance of the contested committal hearing scheduled for 9 February 2021. To adopt such a course would not be appropriate as it would be tantamount to directly indicting the other two and thereby denying them the benefit of a contested committal hearing.[16]

23 The judge accepted the prosecution's submissions. His reasons were relevantly as follows:

The strongly preferred view in relation to the meaning of the words 'each accused' in s 420D(1)(b) is that it refers to each accused for which the prosecution intends to proceed to trial on a single indictment. In this case, that includes not just the applicant but also Omar and/or Nazo Kakar in the event that one or both of them are committed for trial at the conclusion of their committal hearing.

The situation may well be different if the prosecution agreed to try the applicant separately to any of her co-offenders or in the event that the court ordered such a result on the application of one or more of the parties. But here the reality is quite different. The prosecution has not agreed to that course and any application for a separate trial is yet to be made let alone determined.

...

I agree that there is an air of artificiality about the applicant's argument and it would be unfair to the prosecution to view the filed but unsigned indictment as a definitive indication of their position vis a vis the applicant and her two remaining co-offenders. It does not indicate, and should not be treated as indicating, that the prosecution intends to proceed to try the applicant separately whatever be the result of the pending committal hearing and view taken by those two alleged co-offenders.

In the event that one or both alleged co-offenders are committed or directly indicted after being discharged at committal, and propose to plead not guilty, then the ordinary principles and general rule should apply unless displaced. All such accused should be tried together in the one indictment unless and until the prosecution or the court decide otherwise.

I have no doubt that when enacting section 420D and the related provisions of the CPA, parliament did not intend to displace or alter that general rule for which there are sound public policy considerations, including the need to avoid the cost and time of conducting multiple trials in respect of the same events, the need to avoid witnesses and in particular, alleged victims, from having to give evidence on multiple occasions, and the need to avoid inconsistent verdicts. It would be a strange result indeed if it were otherwise as it would entail on the one hand parliament creating a new trial option so as to ensure that the courts could, as far as possible, continue with its work of administering justice, and on the other hand, restricting the amount of trials that could be undertaken by making it easier for an accused in a multi-accused case to seek a separate trial than would otherwise be the case.

Whilst I understand that there is some uncertainty about if and when the two remaining co-accused will be committed for trial and as to what course either or both of them may choose to take if committed, that does not alter my view about what is the plain meaning of the relevant words in section 420D(1)(b). If any further delay pending trial is of such a magnitude that it becomes oppressive or inordinate, then the applicant may well consider applying for bail and/or making some other type of application to the court, for example, that it is an abuse of process to seek to jointly try the applicant in all the circumstances. In that context, I note that as things presently stand, the relevant emergency provisions allowing for trial by judge alone expire in April next year. That is, any trial by judge alone must 'commence' before that sunset date. On the other hand, if within the permitted timeframe, the remaining co-offenders end up pleading guilty or are indicted for trial and consent to a trial by judge alone, then the applicant would have a strong argument in any subsequent application for a trial by judge alone. In that context, I note that the prosecution has indicated that they would consent to such an order being made in either of those scenarios.

...

In the end, I have concluded that the pre-condition set out in s 420D(1)(b) has not been established. Whilst one of the accused, namely the applicant, consents to the making of an order for trial by judge alone, not all of the accused who the prosecution intend to try jointly, consent. As Omar and Nazo Kakar have not also consented to such an order being made, the essential pre-condition in s 420D(1)(b) has not been made out and this application must accordingly be refused.[17]

24 As is evident from the judge's reasons, he did not consider whether the fact that the indictment was unsigned had any bearing on his power to make an order under s 420D(1). That is not surprising because, save for an oblique observation by the prosecutor, the parties did not raise any issues regarding the validity of the unsigned indictment. The oblique observation was made following a question from the judge as to whether the indictment was filed unsigned. After confirming that the indictment was an unsigned draft, the prosecutor stated, 'there hasn't been a joint - an indictment filed in this matter yet, but I certainly don't want to take a technical point'.[18]

25 We will first deal with the jurisdictional issue raised in the email from the Court's Registry before considering the construction issued raised by the applicant's ground of appeal.

26 The applicant accepted that the authorities referred to in the Court's email demonstrate that a failure to comply with s 159(3)(b) will result in the invalidity of an indictment and that any conviction on the basis of that indictment would be a nullity. The applicant also accepted that the reference to an indictment in s 420D(1) is to an indictment which accords with s 159(3).

27 However, the applicant submitted that the County Court had jurisdiction to make an order under s 420D in the present case because, under s 420B(a), the fact that she was committed for trial meant that pt 9.2 applied to her. She also submitted that, based on the principles in Project Blue Sky Inc v Australian Broadcasting Authority,[19] the invalidity of an unsigned indictment does not mean that an order granting or refusing a judge-alone trial is invalid.

28 In Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ stated the following principles for determining whether a decision made under a statute without complying with an applicable statutory requirement is invalid:

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 condition. 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.[20]

29 The applicant relied on this Court's application of the Project Blue Sky principles in Keenan v The Queen.[21] In that case, which concerned noncompliance with a statutory time limit, Priest and Niall JJA stated the following:

Whether compliance with a statutory requirement is essential for the exercise of jurisdiction is a question of statutory construction. The answer to the question is not found by ascribing a label such as mandatory or directory.

A learned author has discerned five factors that may fall for consideration under the Project Blue Sky approach: (1) whether the statutory requirement merely regulates the exercise of a function already conferred or is, rather, an 'essential preliminary' to the exercise of a function; (2) the nature of the requirement, and, in particular, whether it has a 'rule-like quality' that can easily be identified and applied; (3) the public inconvenience that would result if non-compliance means that the decision was invalid; (4) whether there are any other means of giving effect to the relevant requirement, other than by invalidating a decision that does not comply with that requirement; and (5) the extent and consequences of the non-compliance in the particular case.[22]

30 The applicant made the following submissions on each of the factors referred to in Keenan:

(1) The filing of an indictment is preliminary to the exercise of the power to order a judge-alone trial pursuant to s 420D, but whether a signed indictment is 'essential' is contestable, especially in circumstances where the prosecution has subsequently filed an indictment in the same terms.

(2) The requirement to file a signed indictment does appear to have a 'rule-like quality' that can easily be identified and applied.

(3) Some public inconvenience would result if noncompliance means that the decision to refuse a judge-alone trial was invalid and the matter had to be re-determined by the County Court at public expense on the basis of a signed indictment in the same terms as the unsigned indictment.

(4) There are other means of giving effect to the relevant requirement, other than by invalidating a decision that does not comply with that requirement. One such means is the filing of a valid indictment in the same terms. The prosecution has now filed a signed indictment in the same terms and the applicant takes no issue with the fact that the judge's ruling was based on an unsigned indictment in the same terms. This was a matter in the control of the prosecution, which had been ordered to file a signed indictment well before the judge made his decision.

(5) The extent of the noncompliance in the present case is limited by the fact that the prosecution has now filed a signed indictment in the same terms. The consequences of the decision being held to be invalid would be significant to the applicant because any potential judge-alone trial would be delayed or would become impossible after ch 9 of the CPA is repealed on 26 April 2021.

31 The Crown submitted that, as the applicant has been committed for trial, s 420B(a) had the effect that she was able to apply for an order under s 420D notwithstanding that she had not been arraigned. The Crown also submitted that an arraignment was not a prerequisite to the making of such an application. However, the Crown contended that the phrase 'an indictment' in s 420D(1) can only mean a valid indictment and therefore a valid indictment is a prerequisite to an order for a judge-alone trial being made under s 420D(1). According to the Crown, whilst the judge had jurisdiction to hear the application in the absence of a valid indictment, the filing of a valid indictment was a precondition to his jurisdiction to make an order granting the application.

32 In our opinion, the absence of a signed indictment in the present case meant that the judge did not have jurisdiction to make an order under s 420D(1).

33 The requirement in s 159(3)(b) that an indictment 'must ... be signed by the DPP or a Crown Prosecutor in the name of the DPP' is a mandatory requirement, noncompliance with which renders a purported indictment invalid.[23] As the indictment in the present case was not signed, there was no indictment and no 'charges in an indictment' for the purposes of s 420D(1). Accordingly, there were no charges which could be the subject of an order for a judge-alone trial under that section.

34 In accordance with s 420B(a), the absence of a signed, valid indictment did not preclude the applicant from making an application for an order under s 420D(1). However, the absence of a signed, valid indictment meant that such an application was premature because the power in s 420D(1) can only be engaged in relation to such an indictment. Accordingly, unless and until a signed, valid indictment was filed, the judge did not have jurisdiction to make an order under that section.

35 The principles in Project Blue Sky do not assist the applicant. That is because the judge did not make a decision without complying with a statutory requirement for the making of that decision so as to give rise to the question whether that noncompliance rendered the decision invalid. The present case turns on a narrow question of statutory interpretation, namely, whether the existence of a valid indictment is a precondition to the power to make an order under s 420D(1). We have determined that it is because, without a valid indictment, there are no 'charges in an indictment' upon which such an order could operate. Accordingly, the judge lacked jurisdiction to make such an order.

36 It follows that the judge was correct to refuse to make such an order even though his refusal was not based on a finding of absence of jurisdiction. The subsequent signed indictment that was filed on 9 December 2020 was not before the judge and does not have any bearing on the correctness of his decision of 4 November 2020.

37 Having regard to our conclusion on the jurisdictional issue, it is not necessary for us to decide whether the judge's construction of the phrase 'each accused' in s 420D(1)(b) was correct. However, we will briefly summarise the parties' submissions on the construction issue and explain why the judge's construction was erroneous.

38 The applicant submitted that the judge erred in construing the reference to 'each accused' in s 420D(1)(b) as meaning 'each accused for which the prosecution intends to proceed to trial on a single indictment'.[24] She contended that, on its proper construction, the reference is to each accused charged in the indictment for the following reasons:

(a) The purpose of s 420D(1)(b) is to ensure that an accused is only tried by a judge alone if that accused consents. This is in keeping with an accused's right to trial by jury for an indictable offence. That right may only be waived by the accused personally. The making of an order in relation to charges in an indictment involving only one accused cannot prejudice or affect the rights of any other accused.

(b) Where a 'co-accused' is to be tried on a separate indictment, or in a separate jurisdiction, it is unlikely that Parliament intended that the co-accused's consent would be a necessary precondition for an accused that is being tried separately. For example, there will be occasions where an accused is to be tried on an indictment and a co-accused is to be tried separately:

(ii) in the Magistrates' Court by a magistrate (where the offence is triable summarily); or

(c) The New South Wales equivalent legislation permits an accused to be tried by a judge alone in circumstances where co-accused are tried by jury as long as the trial does not proceed as a joint trial. Severance, or the filing of separate indictments by the Crown, can be used to facilitate a judge-alone trial for an accused in circumstances where other co-accused are separately tried by jury.[25]

(d) It was Parliament's intention that the identity of any 'accused' must be discernible from objective criteria, such as an indictment or a filed charge-sheet. The interpretation adopted by the judge would have the effect of rendering it impossible to objectively determine who the accused are in a particular case, as one would need to have regard to the subjective intention of the DPP.

39 The Crown accepted that the phrase 'each accused' in s 420D(1)(b) could, if read in isolation, be construed as referring to 'each accused charged in the indictment'. However, it contended that such a construction would be inconsistent with the context in which the phrase appears and the public policy considerations relevant to applications for separate trials.

40 In relation to context, the Crown argued that, unlike para (a) of s 420D(1) which directly relates to the indictment, paras (b), (c) and (d) extend to matters beyond the indictment. The Crown also argued that the judge's interpretation of the phrase 'each accused' as referring to each accused for which the prosecution intends to proceed to trial on a single indictment is consistent with the definition of 'accused' in s 3, namely, 'a person who ... is charged with an offence'. In the present case, so it was said, the applicant and her alleged co-offenders fall within the definition because each has been charged with the offences of aggravated carjacking and armed robbery. The Crown also relied on the fact that the unsigned indictment alleged that charges 1 and 2 were committed by the applicant with 'her co-offender OMAR KAKAR'.

41 In relation to public policy, the Crown argued that the judge's interpretation of the phrase 'each accused' is consistent with longstanding principles of co-accused being tried jointly.

42 The principles of statutory interpretation make it clear that the starting point is the text of the provision being construed, assisted, where appropriate, by the context and purpose of the provision.[26] The phrase 'each accused', read in conjunction with the phrase 'one or more charges in an indictment', can only mean 'each accused the subject of a charge in an indictment'. There is nothing in the context in which the phrase 'each accused' appears in s 420D, ch 9 or the CPA as a whole which supports any other construction.

43 The fact that the prosecution may contemplate filing over a new indictment in the future which names additional accused can have no bearing on the interpretation of the words 'each accused' in relation to an indictment that is the subject of an application under s 420D. It is that indictment rather than a prior or future indictment which is relevant.[27] Likewise, the public interest considerations in favour of all co-offenders being tried together cannot affect the interpretation of those words.

44 In accordance with the above construction, if the indictment in the present case had been signed, the only accused named in the indictment would have been the applicant and therefore only her consent would have been required. As the applicant had obtained the required legal advice, the preconditions in s 420D(1)(a), (b) and (c) would have been satisfied. The only remaining precondition would have been that in para (d), namely, whether 'it is in the interests of justice to make the order'.

45 As we have already stated, the judge did not deal with the interests of justice precondition in s 420D(1)(d). Had he done so, the factors favouring all co-offenders being tried together to which he referred would have been relevant to the question whether it would have been in the interests of justice for an order to be made that one or more of the charges in the indictment be tried by the trial judge alone.

46 The applicant submitted that, if the Court found against her on the jurisdictional issue, it should set aside the judge's decision and remit the proceeding to the County Court for rehearing.

47 We did not accept this submission. As we have already stated, in circumstances where the judge did not have jurisdiction to grant the applicant's application under s 420D, his order refusing the application was legally correct. The fact that the order was not based on a finding of absence of jurisdiction does not alter the correctness of the order.

48 Finally, we wish to emphasise that our decision to refuse leave to appeal is based solely on our conclusion on the jurisdictional issue and does not involve any adjudication on the merits of the applicant's application under s 420D. Further, our decision is without prejudice to the applicant's right to make a fresh application under that section based on the signed indictment that was filed on 9 December 2020.

[1] Crimes Act 1958 s 79A. The maximum penalty is 25 years' imprisonment.

[2] Crimes Act 1958 s 75A. The maximum penalty is 25 years' imprisonment. Charge 2 is an alternative to charge 1.

[3] Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(b). The maximum penalty is 1 year's imprisonment.

[4] Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(a). The maximum penalty is 5 penalty units.

[5] DPP v Azimi (County Court of Victoria, Judge Gaynor, 17 June 2020).

[6] DPP v Wang (County Court of Victoria, Judge Gamble, 4 November 2020) ('Reasons').

[7] Section 420A(1) provides that the purpose of ch 9 'is to temporarily change the operation of [the CPA] in response to the COVID-19 pandemic'.

[9] On 1 December 2020, Mr Kakar was refused bail. See Re Kakar [2020] VSC 806.

[10] CPA s 6(1)(a).

[11] In Taylor v Attorney-General (Cth) [2019] HCA 30; (2019) 372 ALR 581, 583-4 [4]; [2019] HCA 30, Kiefel CJ, Bell, Gageler and Keane J held that the filing of an indictment in the Supreme Court or the County Court after an accused is committed for trial 'does not commence a new criminal proceeding against the accused but is rather a continuation of the proceeding commenced by the filing of the charge-sheet [in the Magistrates' Court]'. Their Honours relied upon s 162 of the CPA which provides that '[t]he filing of an indictment other than a direct indictment does not commence a new criminal proceeding against the accused'. Prior to the CPA, proceedings were commenced (at least for the purpose of s 607 of the Crimes Act 1958) when a presentment was filed: R v Taylor (No 2) [2008] VSCA 57; (2008) 18 VR 613, 618 [23]-[24], 621 [36], 642 [99], [101]; [2008] VSCA 57; R v BDX [2009] VSCA 28; (2009) 24 VR 288, 314 [157], 322-3 [198]-[199], 324 [209]; [2009] VSCA 28.

[12] A further change was the insertion of the words 'and sought' before the words 'to put [the victim] in fear that [the victim] would be then and there subject to force' in the particulars to charge 1.

[16] Reasons [33]-[37] (citations omitted).

[17] Reasons [39]-[40], [42]-[45], [47].

[18] Transcript of Proceedings (2 October 2020) 6.17-6.19.

[19] (1998) 194 CLR 355; [1998] HCA 28 ('Project Blue Sky').

[20] Project Blue Sky (1998) 194 CLR 355, 388-9 [91]; [1998] HCA 28 (citations omitted).

[21] [2020] VSCA 105 ('Keenan').

[22] Keenan [2020] VSCA 105, [63], [64], citing Graeme Hill, 'Applying Project Blue Sky - When Does Breach of a Statutory Requirement Affect the Validity of an Administrative Decision?' [2015] AIAdminLawF 13; (2015) 80 AIAL Forum 54, 55-69.

[23] See R v Parker [1977] VicRp 3; [1977] VR 22, 24, 29; R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263, 271 [34]; [2005] NSWCCA 2; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10, 27-8 [89]-[90], 29 [97], 39-40 [201]-[205], 53 [263]-[264], 54-5 [271]-[274]; [2005] NSWCCA 281; DPP v Phillips (2018) 361 ALR 635, 639 [14], [16], 641 [22]; [2018] VSC 447. These cases held that an indictment which is signed by a person who was not authorised to do so by the relevant statute, or who was not so authorised as at the date of filing the indictment, is invalid. It must follow that an indictment which is not signed at all is also invalid. This conclusion is supported by s 166 which does not include the absence of a signature by an authorised person in the enumerated errors which do not cause an indictment - or a charge in an indictment - to be invalid. See also R v Evans [1964] VicRp 92; [1964] VR 717, 721-2.

[24] Reasons [39]. See [23] above.

[25] The applicant relied upon R v Jenkin [2018] NSWSC 634, [4].

[26] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47]; [2009] HCA 41.

[27] R v Jenkin [2018] NSWSC 634, [4].