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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v BDF  QDCPR 44
Application pursuant to section 590AA of the Criminal Code 1899 (Q)
District Court at Southport
20 September 2019
18 September 2019
CRIMINAL LAW – PROCEDURE – APPLICATION TO SET ASIDE PLEA OF GUILTY – whether a miscarriage of justice would occur if the plea was not set aside
CRIMINAL LAW – TRIAL BY JURY – NO JURY ORDER APPLICATION – whether in the interests of justice for a no jury order to be made where evidence of acquitted counts would be before the jury
Criminal Code 1899 (Q) ss 590AA, 614 and 615
Garrett v R (1977) 139 CLR 437;  HCA 67 applied
Meissner v R (1995) 184 CLR 132;  HCA 41 applied
R v BDC  QCA 132 cited
R v BDF  QCA 14 cited
R v FAR  QCA 317 applied
R v Fardon  QCA 317 applied
R v Kissier  1 Qd R 353; (2011) 212 A Crim R 121;  QCA 223 applied
R v Storey (1978) 140 CLR 364;  HCA 39 applied
R v Wade  2 Qd R 31;  QCA 289 cited
Mr J McInnes for the defendant
Mr M Hynes for the Crown
Legal Aid Queensland for the defendant
Director of Public Prosecutions (Qld) for the Crown
- This is an application by the defence pursuant to s 590AA of the Criminal Code 1899 (Q) (Criminal Code).
- The application is to set aside the plea of guilty to count 1 and for a no jury order.
- The circumstances of this case are most unusual. The defendant was originally charged with sexual offences involving her daughter, namely five counts of indecent treatment of a child under 12 who was a lineal descendant under care; three counts of rape; two counts of deprivation of liberty and one count of maintaining a sexual relationship with a child.
- The particulars are:
- (a)Count 1 – the complainant walked in on the defendant having sexual intercourse with two men in the garage. The defendant was naked with two elbows on a bench. One male was having sex with her from behind her. She was kissing the male in front. The complainant told the defendant she “shouldn’t be doing that”. The defendant told the complainant to go back to her room, which she did.
- (b)Count 2 – on the same night, the complainant was asleep in bed. She awoke to the defendant holding her hands and one of the men was having sex with the complainant. It hurt. She was given something to drink which made her feel “woozy” and she went back to sleep. She woke up in her pyjamas.
- (c)Count 3 – the defendant was in the garage with a male. The same thing happened as count 1 but with a different male.
- (d)Counts 4-6 – the complainant woke up in bed dressed in a playboy outfit. A male had his penis in her mouth (count 4). The defendant was licking her vagina (count 5). She closed her eyes and it stopped. She was tied up and let out the next day.
- (e)Count 7 - the defendant made the complainant watch a pornographic DVD.
- (f)Counts 8-10 - a couple of days prior to the complainant’s father getting out of jail, the complainant woke up on her knees in the garage. She felt she was being touched by four pairs of hands (count 8). She was told to stay where she was or she would be shot. The defendant was licking her (count 9). They used their private parts to go inside her (count 10). She was tied up at the time.
- (g)Count 11 - the maintaining relied on the previously mentioned acts as particulars.
- The matter came on for trial in the Southport District Court on 12 February 2018. The defendant pleaded guilty to count 1 but not guilty to the other counts. On 16 February 2018 she was found guilty of counts 2, 3, 4, 5, 6 and 11 but not guilty of counts 7, 8, 9 and 10.
- On 8 February 2019 her appeal against the convictions was allowed and a retrial ordered.
- In an affidavit filed 3 September 2019 the defendant said that prior to her trial she conferred with her previous lawyers on 12 February 2018. She instructed them she was being intimate with a man in the garage and she realised the complainant was at the door. She pulled a cover over herself and yelled at the complainant to go back to bed which she did. Clearly the defendant raised a defence to the charge. But despite this, her previous lawyers advised her to plead guilty. They said it was an offence to expose a child to sex but they did not advise it had to be a deliberate or reckless exposure. They also advised her that by pleading guilty to an “accident” this would make the trial easier. This affidavit was relied upon in the Court of Appeal.
- As it turns out, the plea significantly impacted on the defendant’s trial. The Crown in its opening alleged that as to count 1 the defendant “exposed the complainant to an indecent act”. Defence counsel did not take issue with this characterisation in her opening to the jury. In her final address all she said was “… [the defendant] has acted inappropriately in front of her daughter”.
- The Crown in its final address to the jury said that the evidence of the plea of guilty to count 1 supported the complainant’s evidence generally.
- The defendant’s appeal was allowed on the basis that the court was not told of the basis of the plea of guilty and it was not on the basis of deliberate exposure.
- The defence submits that in light of the decision of the Court of Appeal and in light of the fact no valid plea was entered the plea should be set aside.
- The crown submits that the advice given to the defendant by her lawyer was flawed. The flaw was of a fundamental nature and amounts to a miscarriage of justice.
- In those circumstances the application is not opposed.
Discussion as to the plea of guilty
- There is no dispute as to the defendant’s evidence here. She raised a defence to count 1. This court should not accept the plea of guilty. I consider that a miscarriage of justice would arise if I allowed the plea to stand. The plea was the product of incorrect legal advice. I consider that the plea of guilty should be set aside.
No jury order
- The next issue is whether a no jury order should be made.
- The defence submits that a no jury order should be made as a trial which is limited to counts 1-6 and 11 would quarantine the Crown case from its weaker aspects. If the acquitted counts were included, a judge is better equipped than a jury to use this evidence in an admissible way.
- The Crown on the other hand submits it does not propose to lead evidence of the acquittals and it is for the defence to make the decision whether the evidence is led.
- The Crown relies on R v Storey. I do note that Mason J qualifies the position by noting “provided it does not work an injustice to the accused”. The Crown submits that judge alone trials are exceptional and there is nothing exceptional about this case.
- Section 614 of the Criminal Code provides:
“614 Application for order
- (1)If an accused person is committed for trial on a charge of an offence or charged on indictment of an offence, the prosecutor or the accused person may apply to the court for an order (no jury order) that the accused person be tried by a judge sitting without a jury.
- (2)The application must be made under section 590AA before the trial begins.
- (3)If the identity of the trial judge is known to the parties when the application is decided, a no jury order may be made only if the court is satisfied there are special reasons for making it.
- (4)Subsection (3) does not limit section 615 or any other restriction on making a no jury order imposed by this chapter division.
- (5)The court may inform itself in any way it considers appropriate in relation to the application.
- (6)For subsection (2), the trial begins when the jury panel attends before the court.”
- Section 615 of the Criminal Code provides:
“615 Making a no jury order
- (1)The court may make a no jury order if it considers it is in the interests of justice to do so.
- (2)However, if the prosecutor applies for the no jury order, the court may only make the no jury order if the accused person consents to it.
- (3)If the accused person is not represented by a lawyer, the court must be satisfied that the accused person properly understands the nature of the application.
- (4)Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply—
- (a)the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;
- (b)there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury;
- (c)there has been significant pre-trial publicity that may affect jury deliberations.
- (5)Without limiting subsection (1), the court may refuse to make a no jury order if it considers the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.”
- The issue is whether it is in the interests of justice to make the order.
- In R v Kissier it was held that the starting point is trial by jury and that a trial by judge alone is exceptional.
- In R v Fardon it was held that for appropriate cases, s 615 of the Criminal Code provides a useful mechanism to avoid the possibility of an unfair trial.
- The unusual feature of this case is that the reality is we are in the present position because of incorrect legal advice being given to the defendant. I consider it would now be unfair to perpetuate this unfairness by putting the defendant in a position to make a choice on whether a jury should hear about the acquitted counts. In this case the defendant should receive the full benefit of the acquittals. If the matter was put before a jury, the defence would be put in the unenviable position of deciding whether matters should be excised from evidence in respect of which they have had full acquittals. The Court of Appeal recently has told of the importance of fulsome directions where evidence of acquittals are before a jury.
- A judge would not have to speculate as to whether there had been convictions on counts 1-6 and 11 and a judge would not possibly reason that the first jury got the acquittals wrong. There would be no potential for a judge to use the evidence of the acquittals to strengthen the credit of the complainant.
- Also, as the crown conceded in argument, if the jury was to ask what happened with counts 1-6 and 11, a judge would not be able to tell them the truth about what happened. Even if the jury did not ask, in my view bearing in mind the jury would know about the acquittals, and some or all jurors would inevitably speculate as to what occurred with counts 1-6 and count 11.
- In this matter for the defendant to receive a fair trial I consider it essential that all evidence be placed before the tribunal of fact so that the tribunal may properly assess the credit and reliability of the complainant. This includes evidence of the counts on which the defendant was acquitted. A judge is far better placed to analyse the effects of the acquittals on a consideration of the complainant’s evidence.
- There is no risk a judge would engage in inadmissible speculation as to the result on count 1 to 6 and count 11 at the previous trial.
- I consider it is in the interests of justice to make a no jury order.
- In conclusion I make the following orders:
- I set aside the plea of guilty on count 1.
- I make a no jury order.
 R v BDF  QCA 14.
 Appeal book p 28.5.
 Appeal book, p 39.20.
 Appeal book, p 65.10.
 Appeal book, p 94.5.
 Appeal book, p 115.10.
 Appeal book, p 127.37.
 See Meissner v R (1995) 184 CLR 132 at p 157;  HCA 41 per Dawson J; R v BDC  QCA 132 at  and R v Wade  2 Qd R 31;  QCA 289 at  per Muir JA.
 (1978) 140 CLR 364 at p 397 per Mason J;  HCA 39.
  1 Qd R 353; (2011) 212 A Crim R 121;  QCA 223 at -.
  QCA 317 at .
 See Garrett v R (1977) 139 CLR 437 at p 445 per Barwick CJ,  HCA 67; Storey v R (1978) 140 CLR 364 at pp 372 per Barwick CJ and 398 per Mason J,  HCA 39; R v FAR  QCA 317 at -.
- Published Case Name:
The Queen v BDF
- Shortened Case Name:
The Queen v BDF
 QDCPR 44
20 Sep 2019