The judges were right (this time anyway)

John Quiggin (who’s collecting quite a bit of Troppo attention lately) has a post dealing with a recent NSW Court of Criminal Appeal decision which set aside the verdict, conviction and sentence against an alleged heroin dealer. Here’s the newspaper story about it, and here are the CCA’s reasons for decision. John Quiggin felt the CCA decision was ill-advised:

This kind of thing makes me think that the NSW Court of Criminal Appeal has some sort of death-wish. It has overturned a conviction in a lengthy drug trial, on the grounds that the wrong person signed the indictment, although it was common ground that this had no effect on the fairness of the trial. Following a series of disastrous decisions to hold retrials in gang rape cases, which have already led to amendments to the law designed to repudiate the Court’s judgements, I’d have thought the judges would be cautious about playing this kind of game with technicalities.

My instinctive reaction would be to agree, but a reading of the actual decision dictates otherwise.

The prosecutor was a private barrister conducting the case on a brief-out basis from the DPP, and she had signed the indictment against the accused. Unfortunately she had no legal authorisation to sign indictments, and that’s the basis on which the appeal succeeded. The CCA held it wasn’t a mere technicality or procedural error, but a very basic one which invalidated the entire proceedings.

As in many appeal cases, the Court was concerned to interpret the intention of Parliament when that intention hadn’t been expressly spelled out (and when in reality neither Parliament nor the legislative draftsperson may have turned their minds to the question at all). Sometimes the ‘text’ leaves lots of interpretative elbow room, but sometimes it doesn’t. A Court should certainly strive to achieve an interpretation that achieves substantive justice, but it can only do so within the framework, context and words of the legislation. If the judicial task is conceived as merely reading words to mean whatever the judge thinks is a fair thing, the law would just be a caricature of po mo philosophy and even more of an Alice in Wonderland domain than it already is.

In this case, the legislation in question set out who could sign indictments (and how people could be authorised by the DPP to do so) in very clear and apparently mandatory terms. And the legislation went even further and spelled out a list of procedural defects that were deemed not to invalidate an indictment; things such as “for want of an averment of any matter unnecessary to be proved or necessarily implied” and “except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly“. But the list conspicuously doesn’t include “for want of the signature of a person lawfully authorised to issue indictments“.

Now, it might sometimes be possible to argue in those circumstances that the list was intended by Parliament to be merely illustrative not exhaustive. But here Parliament had also provided for a means of substituting a valid indictment for an invalid one (by leave of the court or with the consent of the defendant). Moreover, the indictment is the basic document that commences a criminal prosecution, so it would be a cavalier judge indeed who would effectively add to the list of non-essential technicalities something like “commencement of a serious criminal prosecution by a person who had no legal authority to do so, wherever the DPP feels like adopting it“, when Parliament itself had omitted to do so and instead provided a means for repairing basic defects.

JQ opines that Parliament might now intervene to overturn the effects of this CCA decision (as it has done in relation to certain other recent decisions). But, although Bob Carr might well play to the radio talkback mob with a bout of confected outrage, the reality is that there’s probably no need for any legislative amendment. All that’s needed is for the DPP to issue clear instructions to brief-out prosecutors telling them what they can and can’t do. The newspaper story quotes DPP Cowdery QC as saying he’s now done exactly that. But it’s not unreasonable to ask why he hadn’t done so much earlier? It seems a fairly basic administrative measure when you outsource specialist government legal work (albeit that you wouldn’t really expect a competent barrister – which Kate Traill certainly is – to make such an elementary error).

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Naomi
Naomi
2022 years ago

It’s so easy to make mistakes like that! Bureaucracy is a minefield, but it’s pretty important to our civil and actual liberties that legal bureaucracy be correct. I can totally understand the frustration when an entire trial falls over (particularly because no one noticed it until it was too late). But the indictment is the basis of the trial, and if that’s flawed, then so must the trial be. The logical extension of allowing an unapproved barrister to sign the indictment would be that anyone could. Much better to start again. If the bugger’s guilty, he’s gone. If the next trial fails, maybe his narrow escape will encourage him to mend his ways. That is a form of justice.

wbb
wbb
2022 years ago

Ken’s right. There’s no harm done this way. No wierd precendents are set. The bloke’s still in gaol on remand. The matter can now be dealt with properly. It is not an expensive mistake because it’s a one-off. No need for people to jump on a band-wagon here with alarums about commie activists infecting the bench. This is a matter that is as dry as dust and of no interest to spectators or taxpayers.

Politicians who play on the issue as JQ fears should be combatted. There is always the urge to hand over the carriage of justice to the mob, but it can be resisted. Otherwise we’d ‘ve never even ‘ve got this far. If populism is having its day as it is lately then you fight it you don’t roll over.

John Quiggin
John Quiggin
2022 years ago

I’m unconvinced.

1. I don’t see how the procedure for fixing an invalid indictment undermines the interpretation that the list is illustrative, not exhaustive

2. The rules as you’ve described them seem to imply that the time to object to the validity an indictment is when you’re indicted. In that case, the indictment could be amended by leave of the court if the defect was substantively unimportant, as in this case. If an appeal is allowed after the trial is finished, the amendment procedure is irrelevant.

3. In political terms (and these issues are ultimately political) this case is going to be added to the list of failures of the CCA, and will add to the risk of a backlash next time an appeal is upheld, perhaps on more substantively justifiable, grounds.

Alan
Alan
2022 years ago

Why give the indictment so much priority, especially when the only result is going to be a retrial with a correct signature? I would have thought the evidence, not the formal document starting proceedings, should concern the court. At least one of the rape trials was held invalid because some of the jury had gone off and collected their own evidence.

That is a real and substantive issue because it means those jurors made their findings on the evidence + their own impressions, which the defence had no chance to test. It seems strange to support quashing on highly formalist grounds like the signature on the indictment and oppose quashing on a crucial flaw like jurors going outside the evidence.

If the indictment had been defective because the private barrister was not authorised to conduct the proceedings that would be different case. What mischief is the rule that indictments be signed designed to cure?

Ken Parish
Ken Parish
2022 years ago

Alan

I certainly don’t support upholding verdicts based on jurors going outside the evidence (the basis that one of the Skaf convictions was quashed by the CCA), and for exactly the reasons you mention. You can’t fairly have cases decided by jurors on evidence other than that put before the court. Nor do I like the fact that the conviction here had to be quashed on formalist grounds. But I accept that there’s no choice in the circumstances of this particular case that doesn’t do violence to fairly fundamental interpretative principles (and even more fundamental principles like separation of powers), given the specificity of the existing legislative regime.

The mischief rule is useful mostly for resolving legislative ambiguity, but you have to stretch quite a long way to argue that this statute is relevantly ambiguous. I don’t think it is, and all three judges of the CCA agreed. I wouldn’t necessarily have a problem with a legislative amendment adding lack of an authorised signature to the list of non-invaliditing errors on an indictment(if Parliament sees fit), but I don’t think that result can with integrity be effected by judicial legislative amendment.

Ken Parish
Ken Parish
2022 years ago

JQ

It seems to me that the legislature was saying “here is the list of minor technical errors on indictments that shouldn’t be regarded as leading to invalidity. If the error you make is not one of these, it DOES result in invalidity, and you can fix that by substituting a separate indictment as long as (a) the court gives leave or (b) the defendant consents.”

There are also more directly textual indications that this was intended to be an exhaustive list. For example, the express exception for situations where time is an essential element of the offence: omission of the time then DOES result in invalidity. there are other similar express exceptions. This suggests the list was intended to be complete, and that any error expressly excluded or not mentioned was intended to be dealt with by substitution (rather than judicially deeming the defect to be non-fatal by analogy). I think the statute evinces an intention to distinguish between unimportant technical errors and more critical (though still formal) ones. Omission of time where it’s an element of the offence, and failing to present a duly signed indictment, are both more serious errors (if still formal) than the listed minor ones.

I notice that failing to use the defendant’s correct name in the indictment is alsmo not one of the listed minor non-invalidating errors. Would you argue that this should also be judicially deemed to be non-essential? You could then have an indictment against a wrongly named person, signed by someone who had no authority to issue it, being allowed by a court to form the basis of a prosecution for a serious crime, despite the fact that Parliament HAD turned its mind to the general question and chosen not to list these errors as non-essential ones.

Peter Kemp
Peter Kemp
2022 years ago

Ther concept of whether a legislative list is ”illustrative” or ”exhaustive” is overall a question of interpretation for which the Commonwealth (with state equivilents) passed the Acts Interpretation Act 1901 Cth with an amendment in 1981 which states:

s 15 AA: “In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”

I believe the NSW Act (which I haven’t checked ie Interpretation Act 1987 NSW) is essentially the same.

Judges are allowed to seek the intention of parliament by seeking information from 2nd Reading Speeches to clarify an ambiguous Act.

In Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 at 302 McHugh JA said:

“It is not only when Parliament has used words inadvertantly that that a court is entitled to give legislation a strained construction . To give effect to the purpose of the legislation, a Court may READ WORDS INTO A LEGISLATIVE PROVISION IF BY INADVERTENCE PARLIAMENT HAS FAILED TO DEAL WITH AN EVENTUALITY REQUIRED TO BE DEALT WITH IF THE PURPOSE OF THE ACT IS TO BE ACHIEVED.”

This is what it seems the CCA has done.

Hoping this helps to clarify the case.

derrida derider
derrida derider
2022 years ago

You can twist it all you like, but you and the CCA really have lost sight of the big picture here. People, there is no contention here (not even by the defence) that the clerical error resulted in any injustice – but the CCA’s rectification of that error well may. Ken’s hypothetical case where a clerical error might result in the possibility of injustice simpy does not bear on the matter.

You really can’t complain then when ‘rednecks’ notice that the law does not serve justice, and get upset as a result. If it doesn’t serve justice, why are we bothering with this obscenely expensive system?

Ken Parish
Ken Parish
2022 years ago

DD

The politicians make the law, the courts interpret it and resolve disputes. It’s not quite that clearcut, of course, because the process of interpretation unavoidably results in incremental law-making. And post-mdernists would dismiss ity all as power-driven discourse. But the distinction remains a real and important one, because politicians are elected and judges aren’t. Hence they shouldn’t play too fast and loose with the words of a law Parliament has enacted.

No-one is arguing that this is a substantively just result, but it’s for the political arms of government (Parliament or the executive via the DPP) to fix it, not the courts.

Alan
Alan
2022 years ago

The NSW Act is almost identical:

:In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

To rephrase my question in terms of purposive interpretation rather than the archaic mischief rule, What legislative object does the signature requirement requirement serve? It’s hard to think of any other object than ensuring that certain prosecutions are authorised by the DPP or the Attorney-General. This prosecution was authorised. The lack of a signature doesn’t vitiate anything. Ken’s case, of an unauthorised prosecution does not arise and could not if the court had read the statute purposively.

Ken Parish
Ken Parish
2022 years ago

Alan

Your point is well made, but I’m not sure where it gets a judge trying to interpret the legislation by adding to what the legislators have written. Although it’s true that this prosecution was authorised from the outset (in a substantive sense), one can hypothesise situations where that wouldn’t be the case (e.g. a brief-out prosecutor deciding that the facts justified a more serious charge than she had been authorised to pursue, issuing and signing an indictment on that more serious charge without authorisation, and the DPP later coming under public and political pressure to endorse/adopt it). How would judges draft a legislative exception that contained adequate safeguards against that situation, to ensure that the process of laying prosecutions remained an orderly one?

Simply muttering the magical incantation “purposive” doesn’t automatically result in judges properly being able to refashion legislation on every occasion where they conclude that the purpose of the legislation isn’t being served. Sometimes they have to accept that the task of drafting legislative exceptions (for example) is one best left to the legislators, because it may well involve broader considerations not revealed by the facts of the instant case.

Moreover, I’m not convinced that adding a non-invalidating exception to the list would in fact be furthering the legislative purpose. It depends on what the legislative purpose actually was. Was it to ensure that prosecutions don’t fail in each and every case where a formal error doesn’t adversely affect the fair trial of the charges (presumably your proposition), or some more limited purpose such as to mitigate the severity of previous rigorous formal requirements by providing non-invalidating specified minor error exceptions, but still requiring the central traditional formal requirements of an indictment to be strictly complied with (name of defendant, all elements of the charge required to be proved, issued and signed by an authorised person)? I don’t know which formulation of purpose is closest, and I don’t have time to go and search for the A-G’s Second Reading Speech on introducing these provisions (nor any white papers etc that may have preceded them) to find out. It might be an interesting exercise for anyone who’s got the time. Of course, the fact that such matters were not discussed in the CCA judgment is instructive in itself.

A possibly instructive comparison is provided by bankruptcy legislation, rules and regulations. As any lawyer knows who has issued a bankruptcy petiton (or company winding up proceedings), quite strict compliance with formalities is required. The reason is obvious: the drastic consequences of the remedy being sought by the applicant/petitioner. The same is true of serious criminal prosecutions, but to an even greater extent. Is it really either outrageous or contrary to lelgislative purpose to require the DPP to dot his i’s and cross his t’s when charging a person with an offence that may deprive him of his liberty for many years? And to the extent that one might think it appropriate to relieve the DPP of some of the rigor of that obligation in the public interest of ensuring that the guilty don’t go free on technicalities, that it should be Parliament and (not unelected judges) which decides where the balance should lie?

Ken Parish
Ken Parish
2022 years ago

Before any enthusiastic young law student rushes off looking through old NSW Hansards, I should observe that the probability is that extrinsic aids (like the Minister’s Second Reading Speech) don’t in fact provide any assistance in gleaning legislative purpose. If they did, you would expect one or other of the parties to have adverted to them in argument and the Court to have discussed them in its reasons for decision. In that situation, one is driven to a textual and contextual analysis to divine legislative purpose. That’s what I attempted above, and I argued on that basis that the more limited purpose I set out in the previous comment comes closest to what I read as emerging from the statutory text.

Jacques Chester
Jacques Chester
2022 years ago

O ye of little faith, Ken. Hansard indeed!

trackback
2022 years ago

Good Judge Bad Judge

High Court does right thing by two russian-jewish refugees, while the NSW CofA lets a heroin dealer out on a technicality despite admitting it had nothing to do with guilt.