This is the Bill to which I referred in this House on Wednesday, July 11th, when, in connection with a similarly entitled Bill introduced by Senator Robinson, I said I hoped to introduce legislation before the end of the present session to cure defects in the Criminal Procedure Act, 1967.
I should like to take this opportunity to thank Senator Mrs. Robinson for bringing this subject before the House and also to thank Senators Horgan and West for giving her their support. I should also like to congratulate all three in anticipation that their initiative will bear fruit so quickly if, as I hope, this Bill is passed by the end of the session. If it is, this will be further proof of the value of having a second Chamber in which useful measures of reform, particularly measures not politically contentious, can be initiated.
The main purpose of the Bill, to be achieved by section 1, is the same as the purpose of Senator Mrs. Robinson's Bill—namely, to enable a person who pleads guilty in the District Court to an indictable offence, and is sent forward to the Circuit Court for sentence, to appeal against the sentence to the Court of Criminal Appeal. As the law stands, an offender may not at present appeal against the sentence. This was decided by the Court of Criminal Appeal in The Attorney General v. Tyrrell in 1970. The reason is that an appeal lies only against a sentence passed after a verdict or plea of guilty on indictment and when the accused is sent forward only for sentence there is, of course, no indictment.
Section 1 of the Bill provides that an appeal shall lie against the sentence as if the offender had been sentenced after conviction on indictment. The section differs somewhat from Senator Mrs. Robinson's Bill and is framed in the way it is in order to make it clear that the rules that apply to ordinary appeals against sentence, including, in particular, the requirement to obtain leave to appeal, shall apply to appeals under the section. The section also provides that an appeal shall lie whether the offender has been sent forward for sentence before or after the passing of the Act. This, in my view, is right in principle. In appropriate cases the time for appealing may be enlarged by the Circuit Court or the Court of Criminal Appeal.
Section 2 of the Bill is technical. It makes two provisions to allow for corrections of defects in charges.
The first provision is that, where a person charged with an indictable offence has, under section 12 of the Criminal Procedure Act, 1967, waived the preliminary examination and been sent forward for trial with a plea of not guilty, any defect in the charge may be corrected in stating the charge in the indictment. The new provision is included because I am advised that at present there is no power to correct a defect in the charge in the case I have mentioned. Where there has been a preliminary examination in the District Court, any defect in the charge which was before that court may be corrected, in stating the charge in the indictment, under section 18 of the 1967 Act, but any counts included in the indictment under that section must be "founded on any of the documents (including any depositions ...) and exhibits considered by the justice at the preliminary examination". But in the case in question the preliminary examination has been waived, so section 18 does not apply.
Section 2 of the Bill is intended to fill the gap by allowing any defect in the charge before the District Court to be corrected in stating the charge in the indictment. It will be noted that the power is being limited to making a "correction". Therefore, if it is desired to make an alteration going beyond a "correction"—for example, to charge a wholly different offence —there would have to be fresh proceedings. It will be noted also that the power to make a correction will be subject to the condition that "such correction would not, in the opinion of the court"—that is, the court of trial—"result in injustice".
The second provision made by section 2 is similar to the first but applies to the case where the accused has, under section 13 (2) of the Criminal Procedure Act, 1967, signed a plea of guilty in the District Court and been sent forward for sentence with that plea. This is, of course, the procedure to which section 1 of the Bill relates. There is no power at present to correct any defects in the charge once the accused has been sent forward. This was established by the decision of the Supreme Court in The Attorney General v. Casey and Williams in 1969. Section 2 therefore provides that “any defect in the charge may be corrected ... by the court to which he”—that is, the accused—“has been sent forward”. The section also provides, as a consequence, that the accused's plea of guilty to the original charge shall be treated as a plea of guilty to the charge as corrected.
The accused will be amply safeguarded, in at least three ways, against any possibility of injustice as a result of an alteration of the charge to which he has pleaded guilty. First, the power to make the correction, like the power to which I have just referred to make a correction when the accused has been sent forward for trial, is subject to the condition that "such correction would not, in the opinion of the court, result in injustice". Secondly, the alteration to the charge must not go beyond a "correction". Thirdly— and this will probably be regarded as the most important safeguard—the accused will in all cases have the right, under section 13 (4) (a) of the 1967 Act, to "withdraw his written plea and plead not guilty to the charge". This right will apply to a corrected or uncorrected charge alike. Therefore, if the accused has any objection whatever to the correction, he can simply withdraw his plea of guilty.
Section 3 of the Bill extends the existing powers to grant free legal aid in two respects. First, subsection (1) provides that the power of the District Court to grant legal aid for the purpose of proceedings in that court shall extend to all preliminary examinations in that court. At present this power is restricted, by section 19 (3) of the Criminal Procedure Act, 1967, to cases where the preliminary examination is concerned with a charge of murder. It seems to the Government wrong in principle that charges of murder should be singled out in this respect. The Bill accordingly abolishes the restriction, and, in consequence, repeals section 19 (3) of the 1967 Act.
Secondly, subsection (2) of section 3 provides that, where a person has been sent forward by the District Court for sentence with a plea of guilty under section 13 (2) of the 1967 Act, legal aid may be granted for the purpose of the proceedings in the court to which he has been sent forward and for the purpose of any appeal against the sentence. At present, legal aid is not available for the proceedings in the sentencing court because, under section 3 of the Criminal Justice (Legal Aid) Act, 1962, legal aid may be granted only where a person has been "sent forward for trial on indictment"; and, as already mentioned, there is at present no appeal against the sentence. It seems to the Government clearly right that legal aid should be available in appropriate cases both for the purpose of the proceedings in the sentencing court and for those in the Court of Criminal Appeal.
I trust that I have explained this short, though important, Bill in sufficient detail so that Senators will see the desirability of its early enactment.