Citation: Regina (C'Wealth) v Baladjam & Ors [No 5] [2008] NSWSC 728
Court: Supreme Court of New South Wales
Date: 19 March 2008
Judge(s): Whealy J
Background
Nine accused faced a Commonwealth conspiracy charge in the Supreme Court of New South Wales. Most were arrested and charged in November 2005, with one further accused charged in December 2005. Court attendance notices were issued at the time of arrest.
The Commonwealth Director of Public Prosecutions (DPP) did not provide written consent to the prosecution of the conspiracy charge until 28 February 2007, well after the initial arrests. Committal proceedings commenced in March 2007, the accused were committed for trial in April 2007, and an indictment was presented at arraignment in May 2007.
One accused brought an urgent application to quash the indictment on the basis that the DPP's consent had been given too late. The core question was whether the proceedings had already "commenced" before consent was obtained, rendering them a nullity.
Legal Issues
- Whether section 11.5(8) of the Criminal Code Act 1995 (Cth) required the Commonwealth DPP's consent to be obtained before the accused were arrested and charged, or before some later procedural step.
- Whether section 53 of the Criminal Procedure Act 1986 (NSW) (CPA) applied generally to all criminal proceedings, such that proceedings were "commenced" on the date the first court attendance notice was filed.
- Whether the indictment should be quashed as a nullity because proceedings were commenced without the required prior consent.
Decision
Whealy J rejected the submission that section 53 of the CPA applied generally to all criminal proceedings. On a proper reading of the CPA's structure, section 53 operates within the context of committal proceedings and not as a universal rule about when proceedings commence across the board. The provisions governing indictable offences and summary offences each occupy separate parts of the CPA, and a separate provision mirrors section 53 specifically for summary offences.
His Honour acknowledged genuine difficulty in determining precisely when "proceedings" commence for the purposes of section 11.5(8). The accused argued that proceedings commenced when the original court attendance notice was issued in November 2005. The Crown advanced two alternative constructions: first, that proceedings did not commence until the indictment was presented; second, that the committal proceedings themselves were not infected even if consent was required earlier. Whealy J declined to accept either Crown construction without reservation, noting that the language of section 11.5(8) was peremptory and that the section's objects could equally be satisfied by requiring consent at or shortly after arrest.
However, his Honour declined to resolve the construction question finally. The argument had been heard briefly, the factual record was incomplete, and a determination was unnecessary to dispose of the motion. The critical finding was that, whatever the precise answer to that question, the present proceedings were validly instituted. The application to quash the indictment was dismissed.
Orders Made
- Application to quash the indictment dismissed.
Key Takeaways
- Section 53 of the Criminal Procedure Act 1986 (NSW) does not operate as a general rule that all criminal proceedings commence on the date a court attendance notice is filed. Whealy J held it applies within the committal proceedings context, with separate provisions governing summary and indictable offences respectively.
- Under section 11.5(8) of the Criminal Code Act 1995 (Cth), the question of precisely when "proceedings" commence for the purpose of the DPP consent requirement is not straightforwardly resolved by reference to the date a court attendance notice is issued.
- The peremptory language of section 11.5(8), providing that proceedings "must not be commenced" without DPP consent, is a significant interpretive factor, even though the provision expressly permits arrest, charge, and remand before consent is given.
- Where factual material before the court is insufficient and argument has been brief, a court may decline to resolve a difficult construction question if the outcome of the application does not require it.
- In dismissing the application, the Supreme Court left open a number of interpretive questions about the timing of consent under section 11.5(8), meaning those issues remain available for argument in an appropriate future case.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), s 11.5(8)
- Criminal Procedure Act 1986 (NSW), ss 47, 48, 49, 53, 172, 178
- Director of Public Prosecutions Act 1983 (Cth)
Cases:
- R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10
- R v Michael Taylor [2003] NSWCCA 194
- R v Duffield; R v Dellapatrona (1992) 28 NSWLR 68
- R v Butler (1991) 24 NSWLR 66
- R v Hull (1989) 16 NSWLR 385
- Anthony James Stanton (1991) 52 ACR 65
- Tasker v Fulwood (1978) 1 NSWLR 20