ALERT DIGEST 6 of 1994
Part 3
8.1
This Bill was introduced into the Legislative Assembly on 20 April 1994 by the Attorney-General, The Honourable Jan Wade with The Honourable Michael John.
8.2
The purposes of this Bill are: -
- to provide for the appointment of a Director of Public Prosecutions, a Chief Crown Prosecutor, Crown Prosecutors and a Solicitor for Public Prosecutions and set out their respective powers and functions;
- to require that certain decisions be made by the Director of Public Prosecutions only after the advice of a Committee on the decision;
- to make new provisions with respect to the manner of dealing with certain contempts of court;
- to establish an Office of Public Prosecutions;
- to establish a Committee for Public Prosecutions; and
- to repeal the Director of Public Prosecutions Act 1982.
8.3 Definition of "special decision"
Clause 2 is the commencement provision. The Committee commends the forced commencement procedure.
Clause 3 sets out the various definitions. In particular "special decision" means a decision -
(a) to make a presentment of a person for an offence if, on a committal proceeding, the Magistrates’ Court ordered that person to be discharged on the charge or all the charges to which the committal proceeding related;
(b) to enter a nolle prosequi in relation to the charge or all the charges on which a person was committed for trial on a committal proceeding;
(c) to make presentment of a person for an offence without a committal proceeding having been conducted in relation to that offence, except where that person elects to stand trial on a charge for that offence without a committal proceeding having been conducted;
(d) to make presentment of a person if a Crown Prosecutor and other counsel briefed has advised against making presentment of that person for that offence;
(e) to enter a nolle prosequi in relation to a charge if a Crown Prosecutor or other counsel briefed advise the Director against the entering of a nolle prosequi in relation to that charge;
(f) to appeal against or seek any relief or remedy on respect of an Order of the Supreme Court or the County Court quashing or granting a permanent stay of a presentment, on the ground that for the person to be tried for the offence, would constitute an abuse of process;
(g) to issue guidelines under section 26(1); and
(h) of any other kind, that in the opinion of the Director, should be treated as a special decision for the purposes of the Act.
The Committee makes no further comment.
8.4 The Director of Public Prosecutions
Part 2 relates to the appointment of a Director of Public Prosecutions.
Clause 4 provides that the Governor-in-Council may appoint a Director of Public Prosecutions who is to hold office for a term of 10 years and is eligible for re-appointment. Clause 5 sets out the terms and conditions. Clause 6 provides that the Director may resign. Clause 7 provides for the suspension and removal of the Director by the Governor-in-Council and by resolution of both Houses of Parliament. Clause 8 provides for the pension of the Director and his or her spouse and children.
Clause 9 provides that the Governor-in-Council may appoint an Acting Director who is subject to the same terms and conditions as the Director. Clause 10 provides that the Director is responsible to the Attorney-General but nothing affects or takes away from his or her authority in respect of the institution or preparation of proceedings under the Act. Clause 11 states that the Director may appear in person or be represented by counsel or a solicitor in any proceeding. Clause 12 provides that the Director must prepare an Annual Report to the Attorney-General which must be laid before Parliament.
The Committee makes no further comment.
8.5 The Chief Crown Prosecutor
Part 3 relates to the appointment of the Chief Crown Prosecutor.
Clause 13 provides that the Governor-in-Council may appoint a Chief Crown Prosecutor who is to hold office for a term of 10 years and is eligible for re-appointment. Clause 14 sets out the role of the Chief Crown Prosecutor who is subject to the general direction and control of the Director, but is responsible for the day to day management of the Crown Prosecutors. Clause 15 sets out the terms and conditions. Clause 16 provides that the Chief Crown Prosecutor may resign.
Clause 17 provides for the suspension and removal of the Chief Crown Prosecutor by the Governor-in-Council and by resolution of both Houses of Parliament. Clause 18 provides for the pension of the Chief Crown Prosecutor and his or her spouse. Clause 19 provides that the Governor-in-Council may appoint an Acting Chief Crown Prosecutor who is subject to the same terms and conditions as the Chief Crown Prosecutor.
Clause 20 provides that the Chief Crown Prosecutor is responsible to the Director but that nothing empowers the Director to give any direction to the Chief Crown Prosecutor with respect to the presentment of any person for an offence or the performance of his or her functions. Clause 21 provides that in the event that the Chief Crown Prosecutor has a conflict of interest, the Director may request a Crown Prosecutor to perform those functions or exercise those powers.
The Committee makes no further comment.
8.6 The Functions and Powers of the Director
Part 4 sets out the functions and the powers of the Director.
Clause 22 sets out the functions of the Director. However, if the exercise of that power is dependent upon making a "special decision", then the Director must obtain the advice of the Director’s Committee on that special decision. "Special decision" is defined in clause 3 and discussed at 9.3.
Pursuant to Clause 23, the Director’s Committee consists of the Director, the Chief Crown Prosecutor and the next most senior Crown Prosecutor concerned. The Director’s Committee may regulate its own meeting procedure and its function is to offer advice to the Director. If the Director makes a special decision contrary to the advice of the other two members, he or she must submit to the Attorney-General as soon as practicable, a statement stating the reasons for the decision so that it can be laid before Parliament.
If the other two members of the Committee have advised the Director in writing that it is not necessary to convene a meeting and have provided written advice on the special decision, the Director is not obliged to convene a meeting.
Clause 24 sets out the matters to which the Director must have regard. Clause 25 gives the Director the same power to enter a nolle prosequi as he had before the commencement of the Act. Clause 26 provides that the Director may issue guidelines with respect to the prosecution of offences but not with respect to a particular case. The guidelines must be published in the Government Gazette. this mirrors section 10 in the Director of Public Prosecutions Act 1982.
Clause 27 sets out when the Director is to be supplied with information. Clause 28 provides that the Director may request police assistance. Clause 29 provides that the Director may request the Attorney-General to exercise his or her powers, in the event of a conflict of interest.
8.7 Delegation of powers
Clause 30 provides that the Director may, by instrument delegate to the Chief Crown Prosecutor or to the Solicitor for Public Prosecutions any power or function under the Act. The Committee notes that the powers can only be delegated to specific individuals. The Committee also notes that the delegation is limited and that specific powers can not be delegated, namely;
(a) the power to make presentment of any person for an offence or to enter a nolle prosequi in a criminal proceeding;
(b) the power to give any authority or consent required for the commencement of a criminal proceeding;
(c) any function or power as a member of the Director’s Committee and this actual power of delegation.
The Committee makes no further comment.
8.8 Crown Prosecutors
Part 5 relates to Crown Prosecutors.
Clause 31 provides for the appointment of full-time and part-time Crown Prosecutors by the Governor-in-Council. Provision is also made for the appointment of a Senior Crown Prosecutor who is to be assigned special responsibility for trials of a particularly complex criminal nature. Clause 32 sets out the terms and conditions. A Senior Crown Prosecutor and a Prosecutor is appointed for a term of 10 years and is eligible for re-appointment. The remuneration is fixed by the Governor-in-Council. Clause 33 provides that a Crown Prosecutor may resign. Clause 34 provides that the Governor-in-Council may remove a Crown Prosecutor from office. Clause 35 provides for the pension of the Senior Crown Prosecutor, his or her spouse and children.
Clause 36 sets out the functions of Crown Prosecutors which are to make presentment of any person for an offence in the name of the Director, to appear as Counsel on behalf of the Director and any other functions given by the Director. The Crown Prosecutor may not make presentment if the offence if the decision to which it relates is a special decision.
Note that pursuant to Schedule 1, section 352 of the Crimes Act 1958 which relates to Prosecutors for the Queen is repealed. This effectively abolishes the Prosecutors for the Queen. The Committee notes the comments in the Second Reading Notes: -
" The existing Prosecutors for the Queen will be entitled to be appointed as Crown Prosecutors for a term equal to the balance of the term of his or her appointment as a Prosecutor for the Queen. Any leave of absence entitlements are to be preserved and the appointment will be on terms and conditions, with respect to salary and superannuation, which are no less favourable than those relating to the office held as Prosecutor for the Queen."
The Committee makes no further comment.
8.9 Solicitor for Public Prosecutions
Part 6 relates to the Solicitor for Public Prosecutions.
Clause 37 provides that the Governor-in-Council may appoint a Solicitor for Public Prosecutions.
Clause 38 sets out the functions of the Solicitor for Public Prosecutions. The Solicitor for Public Prosecutions is to mange the Office of Public Prosecutions, to brief Crown Prosecutors and perform any other function.
Clause 39 gives the Solicitor for Public Prosecutions the power to delegate to any member of the staff employed in the Office of Public Prosecutions, any function or power.
The Committee notes that the powers to be delegated are limited to members of the staff of the Office of Public Prosecutions and makes no further comment.
8.10 Office of Public Prosecutions
Part 7 relates to the Office of Public Prosecutions.
Clause 40 establishes the Office of Public Prosecutions. Clause 41 sets out the functions of the office.
The Committee makes no further comment.
8.11 Committee for Public Prosecutions
Part 8 relates to the Committee for Public Prosecutions.
Clause 42 establishes a Committee for Public Prosecutions. The Committee consists of the Director, the Chief Crown Prosecutor, the Solicitor for Public Prosecutions and a person appointed by the Governor-in-Council. Clause 43 sets out the functions of the Committee. The Committee notes the comments in the Second Reading Notes: -
"The Committee will bear responsibilities relating not just to the officers and the Office constituted under the Bill but also to the wider prosecution system.
The Committee has been given a general role advising on the operation of the Victorian prosecutorial system. One aspect of this advisory role will be the determination of offences and classes of offences to be referred by the police to the Director or the Solicitor for Public Prosecutions for the institution and conduct of proceedings. It is anticipated that the next five years will see the gradual taking over from the police of all the committal and summary prosecution work - a project for which the groundwork is already being laid..........
One of the important functions of the Committee for Public Prosecutions is its establishment of guidelines regarding the circumstances under which a decision, which would ordinarily be defined as a special decision, is not to be treated as such. This enables the Director to make decisions in some situations without the necessity of convening a Director’s Committee. An example of a situation which may be covered by the guidelines is the decision to enter a nolle prosequi when, in a prosecution where the only incriminating evidence is from a particular witness , the witness is either deceased or cannot be located. In such a situation it would not appear necessary for the Director to seek further advice before entering the nolle prosequi. The power of the Committee for Public Prosecutions to establish such guidelines enables the decision making processes to operate efficiently and effectively but not at the expense of the proper administration of justice."
Pursuant to Clause 44, a question arising at a meeting of the Committee must be determined by a majority of votes of the members present. If the votes are equal, the person presiding has casting vote as well as a deliberative vote. Clause 45 provides that the Committee must submit an Annual Report to the Attorney-General which must be tabled in Parliament.
The Committee makes no further comment.
8.12 Contempt of court
Clause 46 gives the Attorney-General the power to bring an action for contempt of court that involves an interference with the due administration of justice, either in relation to a pending proceeding or more generally. The Attorney-General must only act on the advice and in accordance with the advice of the Solicitor-General. If the Attorney-General acts contrary to the advice, he or she must lay a full statement of reasons for his or her decision before both Houses of Parliament.
Sub-clause (5) of Clause 46 preserves the right of a person to apply to a court for punishment of a person for a contempt of court that involves a breach of a court order. It preserves the right of a person to apply for an injunction restraining a person from engaging in conduct that would or may constitute a contempt of court. It also preserves the power of a court to deal with a contempt summarily of its own motion.
The Committee makes no further comment.
8.13 Supreme Court -limitation of jurisdiction (section 4D(b)(i)(ii) and (iii) of the Parliamentary Committees Act 1968)
Clause 49 of the Bill states its intention to alter or vary section 85 of the Constitution Act 1975, to the extent necessary to prevent the Supreme Court from entertaining applications in respect of: -
(a) any person other than the Attorney-General for punishment of a person for a contempt of court that involves an interference with the administration of justice. The Committee notes the comments in the Second Reading Speech: -
"The reason for this is that the power to bring an action for criminal contempt is to be vested in the Attorney-General acting only on the advice of the Solicitor-General. There is considerable support for the proposition that actions for criminal contempt should not be brought by way of presentment, in the same manner as other criminal proceedings, but be brought under the rules of the Court and that it is a matter more properly handled by the Attorney-General. By vesting the power to bring actions for criminal contempt in the Attorney-General, acting on advice, the perceived danger of a conflict of interest is avoided in situations where the Director seeks to make presentment for contempt against a party who he or she is prosecuting for criminal charges which may either be before the court at that time or being considered by the Director, or where the prosecution for contempt relates to such matters. Vesting this power in the Attorney-General is consistent with the Attorney-General’s role as first law officer with responsibility for the administration and protection of the justice system.
The Committee notes the explanation and reports that the proposed provision is appropriate in all the circumstances.
(b) any proceeding in which a verdict returned by the jury on a trial on presentment is sought to be challenged on the ground that the making of the presentment was dependent on the making of a special decision and that procedures had not been complied with, for the making of that decision. The Committee notes the comments in the Second Reading Speech: -
"The reason for preventing any challenge to a jury verdict or court order in these circumstances is to ensure the efficient and economic administration of justice as well as to prevent uncertainty in the system of prosecution."
The Committee notes that verdicts can still be challenged on the other normal ground and reports that the proposed provision is appropriate in all the circumstances.
(c) any person for an order in the nature of prohibition, certiorari, mandamus, declaration or injunction or for any other relief in respect of a verdict returned by a jury on a trial on presentment where a special decision has been made and procedures have not been complied with for the making of that decision. The Committee notes the comments in the Second Reading Notes: -
"The reason for preventing these applications under these circumstances stated is to ensure the efficient and economic administration of justice as well as to prevent uncertainty in the system."
The Committee reports that the proposed provision is appropriate in all the circumstances.
