Exit Distraction Free Reading Mode
- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v Mitchell  QDC 89
JOSHUA WILLIAM MITCHELL
20 May 2020
19 May 2020
Cash QC DCJ
The applicant be tried by a judge sitting without a jury.
CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – ELECTION – where applicant charged on indictment for malicious act with intent to cause grievous bodily harm and three summary offences – where applicant made application for “no jury order” due to the COVID-19 pandemic – where it is unknown when jury trials will resume – where the trial outcome depends on whether or not the applicant intended to cause some grievous bodily harm – whether a “no jury order” is in the interests of justice
Criminal Code (Qld), s 614, s 615
Human Rights Act 2019 (Qld), s 32(2)(c)
Jago v District Court of New South Wales (1989) 168 CLR 23
R v Belghar  NSWCCA 86
R v Fardon  QCA 317
R v Kissier  1 Qd R 353
R v Pentland  QSC 78
R v Qaumi & Ors (No 14)  NSWSC 274
TVM v State of Western Australia (2007) 180 A Crim R 183
KT Bryson for the applicant
WM Slack for the respondent
Fisher Dore Lawyers for the applicant
Office of the Director of Public Prosecutions for the respondent
- The applicant, Joshua William Mitchell, applied for an order that he be tried by a judge sitting without a jury. The application was heard by me on 19 May 2020 at which time I ordered that the applicant be tried by a judge sitting without a jury. These are my reasons for making that order.
- A “no jury order”, is permitted by section 614 of the Criminal Code (Qld). The applicant faces an indictment in the following terms:
“Count 1 that on the seventh day of October, 2018 at Yandina in the State of Queensland, JOSHUA WILLIAM MITCHELL, with intent to do some grievous bodily harm to JACOB JOHN FOLEY, unlawfully wounded JACOB JOHN FOLEY
that on the seventh day of October, 2018 at Yandina in the State of Queensland, JOSHUA WILLIAM MITCHELL unlawfully wounded JACOB JOHN FOLEY
Count 2 that on the seventh day of October, 2018 at Yandina in the State of Queensland, JOSHUA WILLIAM MITCHELL robbed MARC JONATHAN HEATH
and JOSHUA WILLIAM MITCHELL pretended to be armed with a dangerous instrument, namely a knife”.
- The applicant was arrested on 8 October 2018. He has been held on remand since then, a period of about 19 months. An indictment was presented on 29 July 2019 and the applicant was arraigned on 30 September 2019. He pled not guilty in relation to the allegation of unlawful wounding with intent to do grievous bodily harm but offered a plea of guilty to the alternative allegation of unlawful wounding. The plea to the alternative count of unlawful wounding was not accepted by the prosecution and the allocutus was not administered. Thus the plea of the applicant was not accepted by the court and he has not been convicted of any offence set out in count 1. The applicant pled guilty to the armed robbery alleged in count 2 and the allocutus was administered in relation to that count. It has not been determined which of the two approaches discussed in R v Rogers  QCA 52 at  to  are to be adopted at the applicant’s trial.
- The applicant was to face trial in early February 2020, but the trial was adjourned on the application of the prosecution. In the time since jury trials have been suspended.
- It is against this background that the applicant seeks a no jury order. As required by rule 42A of the Criminal Practice Rules 1999 (Qld), an affidavit has been filed on behalf of the applicant setting out the grounds on which the application is made. For the applicant it is said that a no jury order should be made because jury trials have been suspended in Queensland and, “it is in the interests of justice that the applicant’s trial proceed expeditiously, particularly having regard to the age of the matter and the applicant’s time spent on remand.” The prosecution supports the application.
- Before considering whether it is in the interests of justice to make a no jury order it is helpful to set out a summary of the allegations and what is said to be the issue to be determined at the trial.
Summary of allegations
- The following summary is taken from material provided by the prosecution. It was acknowledged by the applicant as representing evidence that might be accepted by the trier of fact.
- Jacob Foley was 34 years old in October 2018. He did not know the applicant. Mr Foley was at the Yandina Hotel with group of family members on the afternoon of 7 October 2018. The applicant also happened to be at the Hotel. Sometime after 9.00 pm the applicant went outside where he took a machete from his car and concealed it under his shirt. At about 10.00 pm the applicant was outside the hotel with some of the group. People from the group were causing a commotion. The applicant took off his shirt, held up the machete and approached Mr Foley. As he neared, the applicant swung the machete at Mr Foley. Mr Foley held up his arms and was struck by the machete on his left forearm.
- A short struggle followed before Mr Foley was taken inside the Hotel. The applicant began to follow but was told to leave by the Hotel Manager. The applicant drove away before police arrived. Mr Foley suffered a deep, 10 centimetre long laceration to his arm. It penetrated into muscle required medical treatment.
- The next day police located the applicant and spoke to him while recording the conversation. He told police that he was under the care of a psychiatrist and that he had taken Valium, Lexapro and a six pack of beer the night before. The applicant indicated he had little memory of that night but accepted that he used the machete at the Yandina Hotel.
What is in issue?
- The applicant admits that he stabbed Mr Foley and in so doing committed the offence of unlawful wounding. He denies that he did so intending to cause some grievous bodily harm. The only issue to be determined at the trial is whether or not, at the time of the wounding, the applicant intended to cause some grievous bodily harm to Mr Foley. If that is proved beyond reasonable doubt, the applicant would be guilty of unlawful wounding with intent and it would not be necessary to consider the alternative allegation.
- The parties agree that the principle considerations in determining this issue will accord with those set out in model directions in the “Supreme and District Courts Criminal Directions Benchbook”. The model directions concerning “59. Intention”, “48. Circumstantial Evidence”, and “84. Intentional Intoxication” (as it relates to an offence of which a specific intent is an element) will be of particular relevance.
Legislation and relevant principles
- Sections 614 and 615 of the Criminal Code were inserted in 2008. They are in the following terms:
“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.
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 overarching question is whether it is in the interests of justice to make a no jury order. I note that if the identity of the trial judge is known to the parties a no jury order can only be made if there are “special reasons for making it”. As the matter is not presently listed for trial I do not consider the identity of the trial judge is known. There are two judges based in Maroochydore and other judges visit from time to time. As the matter is not yet listed the parties cannot know who will hear the trial. There is no need for the applicant to show there are special reasons for making a no jury order.
- The willingness of a defendant to forgo trial by jury may have significance, but it remains for the court to be satisfied that it is in the interests of justice to adopt a different mode of trial. The phrase “the interests of justice” is so general and abstract it takes on meaning only within the context of the circumstances of a particular application. The fact that, absent a no jury order, a defendant would be tried before a jury, does not itself suggest how the discretion should be exercised in a particular case. Either it is, or it is not, in the interests of justice for a trial to proceed without a jury.
- None of the specific disqualifying factors identified in section 615(5) are of relevance in the present application. It may be that the trial requires an assessment of the credibility of witnesses, but this does not involve “the application of objective community standards”.
Consideration and disposition
- The matters set out in section 615(4) are illustrations of matters that might permit the making of a no jury order. None of them arise in this case. But what is in the interests of justice is not limited. The basis for the application is the likely delay before the applicant could face a trial by jury, especially when the applicant has been held in custody for a substantial period of time. The ordinary processes of the court have been disrupted by what has come to be known as the COVID-19 pandemic. On 16 March 2020, all new jury trials in the District Court were suspended. It is not known when jury trials might resume. It is unlikely they will resume before July 2020.
“That is not to say that the courts of this country do not regard speed in the disposition of criminal cases as desirable. To the contrary, it is a truism that justice delayed is justice denied. In Lord Bacon's words … "(j)ustice is sweetest when it is freshest." Therefore, within the limits of their resources, the courts so mould their procedures as to avoid unnecessary delays in the disposition of cases both criminal and civil.”
- As well, the Human Rights Act 2019 (Qld) provides that a person charged with a criminal office is entitled “to be tried without unreasonable delay”.
- The relevant considerations appear to be as follows. The applicant is willing to waive his right to be tried by a jury. The matter can be dealt with efficiently before a judge sitting without a jury. The sole issue to be decided at the trial does not require the application of objective community standards. Trial by jury is not presently available and will not be available for some time. The application is supported by the prosecution.
- In my view it is in the interests of justice to make a no jury order. I order that the applicant be tried by a judge sitting without a jury.
 Exhibit 1 tendered at the hearing.
 Supreme and District Courts Criminal Directions Benchbook.
 R v Fardon  QCA 317, at ; R v Kissier  1 Qd R 353, at .
Criminal Code (Qld), section 614(3).
 R v Belghar  NSWCCA 86, at .
 R v Kissier  1 Qd R 353, at -.
 R v Fardon  QCA 317, at ; TVM v State of Western Australia (2007) 180 A Crim R 183, at -.
 R v Kissier  1 Qd R 353, at .
 R v Pentland  QSC 78, at .
 R v Qaumi & Ors (No 14)  NSWSC 274, at -.
 Jago v District Court of New South Wales (1989) 168 CLR 23; cf. United States Constitution amend VI.
(1989) 168 CLR 23, at 44-45.
 Section 32(2)(c).
- Published Case Name:
The Queen v Joshua William Mitchell
- Shortened Case Name:
The Queen v Mitchell
 QDC 89
20 May 2020