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Queensland Judgments
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  • Unreported Judgment

R v Terare

 

[2020] QDCPR 14

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

The Queen v Terare [2020] QDCPR 14

PARTIES:

The Queen

V

TERARE, Colin John

FILE NO/S:

1197/19

DIVISION:

Criminal

PROCEEDING:

Application pursuant to s 614 of the Criminal Code 1899 (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2020

JUDGE:

Smith DCJA

ORDER:

  1. I make a no jury order.

CATCHWORDS:

CRIMINAL LAW – APPLICATION BY DEFENDANT FOR A NEW JURY ORDER – whether no jury order is in the interests of justice

Criminal Code 1899 (Qld) ss 614, 615

R v Clough [2009] 1 Qd R 197; [2008] QSC 307, cited

R v Fardon [2010] QCA 317, cited

R v Kissier [2012] 1 Qd R 353; 212 A Crim R 121; [2011] QCA 223, cited

R v Prisk and Harris [2009] QSC 315, cited

COUNSEL:

Ms C Cuthbert for the defendant

Mr J Bishop for the Crown

SOLICITORS:

Aboriginal Torres Strait Islander Legal Service for the defendant

Office of the Director of Public Prosecutions for the Crown

 Introduction

  1. [1]
    This is an application by the defendant for a no jury order pursuant to s 614 of the Criminal Code 1899 (Qld).

Charges

  1. [2]
    The defendant is charged with the following offences;
  1. (a)
    Count 1 – that on a date unknown between 1 January 2018 and 2 July 2018 at Zillmere in the State of Queensland the defendant unlawfully and indecently dealt with B, a child under the age of 16 years
  1. (b)
    Count 2 – that on 1 July 2018 at Zillmere in the State of Queensland the defendant without legitimate reason lawfully exposed B, a child under 16 years, to indecent matter.

Background

  1. [3]
    The matter came on for trial during the week of 28 October 2019. The defendant was convicted of Count 2 and received a fine with no conviction recorded. The jury failed to reach a verdict on Count 1. The matter was listed for trial in the week commencing 23 March 2020 as trial number 2 in Judge E’s list.
  1. [4]
    On 16 March 2020, it was determined that all new jury trials would be suspended until further notice owing to the risks posed to public health by the COVID-19 virus.
  1. [5]
    The defendant is a 70 year old indigenous man born on 20 September 1949. He had several serious health conditions including diverticulitis and trigonitis. In 2016, he had a tumour removed from his bladder and in 2018 a tumour was removed from behind his left ear. He suffers ongoing pain and discomfort in his bladder which is detailed in a letter by Dr Esler dated 10 October 2019.
  1. [6]
    The defendant during his trial intends to travel by train to the court.

Defence submissions

  1. [7]
    The defence submits that the fact of the COVID-19 pandemic and its accompanied risks to public health provide for a special circumstances required by s 614 of the Code. It is submitted that the interests of justice here are served by making a no jury order.
  1. [8]
    I was informed that Burns J of the Queensland Supreme Court recently granted a judge only trial by reason of the present circumstances.

Crown submissions

  1. [9]
    The Crown does not oppose the application. The Crown accept that there are special circumstances which would give rise to an order for a judge alone trial.

Discussion

  1. [10]
    Section 614 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.”
  1. [11]
    And s 615 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—
  1. the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;
  2. 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;
  3. there has been significant pre-trial publicity that may affect jury deliberations.
  1. 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.”
  1. [12]
    In R v Clough [1] , McKenzie J observed at paragraph 6:

“[6] The safeguard in s 614(3) against such an application being made in those circumstances is a requirement that a no jury order may be made only if the court is satisfied that there are special reasons for making it. The essential concept is that, in applications where special reasons must be established, once that threshold is reached, and in cases where the identity of the trial judge is not known and it is not applicable, the court may make a “no jury order” if it considers it is “in the interests of justice to do so”. That is, in my view, an unfettered discretion to make such an order if, having regard to the issues in a particular case and any other matters bearing on what might be properly encompassed in the notion of the interests of justice in that case, the Judge considering the application is of the view that it is, in fact, in the interests of justice to make such an order. Section 615(4) gives non-exclusive examples of particular circumstances that may be taken into account by the court in deciding whether or not to make a no jury order.”

  1. [13]
    In R v Fardon[2], Chesterman J observed at paragraph 81:

“[81] The Criminal Code provides that ordinarily indictable offences are to be tried by a jury. … Sections 614 and 615 are in Chapter division 9A, “Trial by judge alone”. It follows that trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that be the mode of trial. If the Code expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice.”

  1. [14]
    As to the phrase “interests of justice” Martin J in R v Prisk and Harris [3] said:

“The phrase “interests of justice” is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial. I agree with the description of Malcolm CJ in Mickelberg that the interests of justice comprehend: the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.”

Disposition

  1. [15]
    As the identity of the trial judge is not known to the parties the “special reasons” provision in s 614(3) does not apply.
  1. [16]
    The question is whether it is in the interests of justice to make the order.
  1. [17]
    I agree that the fact of the COVID-19 pandemic and its accompanying risks to public health is a crucial factor of this case. The suspension of all new jury trials is a very relevant factor indeed.
  1. [18]
    I find that the interests of justice will be served by the making of a no jury order as the order will ensure the trial can go ahead without delay. It is in the interests of the defendant that his trial be completed swiftly. It is also in the interests of the community that the administration of justice continue and trials be heard for as long as is reasonably possible (without risk to health of any of the participants).
  1. [19]
    Also, the defendant is a 70 year old indigenous man with significant health issues who should have an early trial.
  1. [20]
    A judge only trial, I am told, will also be considerably shorter than a trial by jury and indeed it could be expected to be concluded within a day. Also, I take into account, the Crown’s attitude towards the application.

Order

  1. [21]
    I make a no jury order.

Footnotes

[1]  [2009] 1 Qd R 197; [2008] QSC 307.

[2]  [2010] QCA 317. Fardon was followed in R v Kissier [2012] 1 Qd R 353; [2011] QCA 223.

[3]  [2009] QSC 315 at [25].

Close

Editorial Notes

  • Published Case Name:

    The Queen v Colin John Terare

  • Shortened Case Name:

    R v Terare

  • MNC:

    [2020] QDCPR 14

  • Court:

    QDCPR

  • Judge(s):

    Smith DCJA

  • Date:

    23 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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