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).