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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v Logan  QDCPR 67
Application under s 590AA of the Criminal Code
Ipswich District Court
17 June 2020, ex tempore
17 June 2020
Horneman-Wren SC DCJ
The application is allowed.
CRIMINAL LAW – APPLICATION – NO JURY ORDER SOUGHT – whether no jury order is in interests of justice – where jury trials have been suspended by public health concerns around COVID-19 – where the identity of the trial judge is not known – whether it is in the interests of justice that a no jury order be made
Criminal Code 1899 (Qld) ss 614, 615
Criminal Code and Jury and Other Acts Amendment Act 2008 (Qld) ch 62
Human Rights Act 2019 (Qld) ss 3, 4, 7, 9, 15, 32, 48, 58
R v Paton  QDCPR 65, cited
R v Pentland  QCS 78, cited
R v Phillott  QDCPR 63, cited
Mr J Thomas for the applicant
Mr F Anoozer for the respondent
Bouchier Khan for the applicant
Office of the Director of Public Prosecutions for the respondent
- This is an application for a no jury order, pursuant to section 614 of the Criminal Code. The applicant is charged on indictment with one count of producing a dangerous drug. The offence is alleged to have been committed between 19 January 2018 and 7 February 2018. The indictment was presented on 29 January 2019.
- On 23 January 2020, it was given a trial listing as the number 5 trial in sittings commencing on 1 June 2020. On 16 March 2020, it was announced that in response to the evolving health crisis posed by COVID-19, as a precautionary measure, all new jury trials in Queensland would be suspended for the immediate future. On 26 May 2020, the applicant’s trial was delisted.
- The applicant seeks a no jury order pursuant to section 614 and 615 of the Criminal Code. Since the delisting of his trial, the identity of the trial judge is not known. Therefore, the court does not have to be satisfied that there are special reasons for making the order.
- The applicant must, though, satisfy the court that the making of the order is in the interests of justice. In R v Phillott, for reasons I explained therein including the adoption of what had been said by Burns J in R v Pentland, I expressed the view that earlier cases which had considered the application of sections 614 and 615 of the Criminal Code in circumstances in which trial by jury was not suspended, beyond providing general statements as to the breadth of the meaning of the expression “in the interests of justice,” can offer little by way of direct guidance as to how those provisions ought be applied in the present circumstances. For reasons I explained in R v Paton, I continue to adhere to that view, even though there may be some limited return to trial by jury in the coming months.
- The applicant’s trial has been delayed already. It is not a matter which would suggest that it would be accorded priority upon the limited resumption of jury trials.
- The applicant is desirous of being tried for the offence charged and is willing to forgo a trial by his peers so that that may occur sooner rather than later. In my view, those matters favour the view that it is in the interests of justice that a no jury order be made.
- However, there is a further issue that should be addressed. In written submissions, counsel for the applicant raises the applicant’s right under the Human Rights Act 2019, to be tried without unreasonable delay. Counsel submits that the circumstances which would follow a refusal of the application include that the matter will not be given a future trial listing until an indeterminate date and will be added to an already growing backlog of cases with which the court will be required to deal when the current suspension of jury trials is lifted.
- It is further submitted that the consequent delay in bringing the matter to a conclusion will amount to an unreasonable delay in contravention of the Human Rights Act 2019 (Qld). The submission is developed in the following way. It is submitted, firstly, that pursuant to s 32(2)(c) of the Human Rights Act, the applicant is entitled to be tried without unreasonable delay. Some examples are then given of what it is submitted might be circumstances which may cause delay which could be considered reasonable. They need not be discussed.
- It is then submitted that in this case, it is the unavailability of a jury that is the only reason for the delay, and that can be overcome by making the order. The applicant then submits:
“In those circumstance (sic) delay occasioned by a failure to proceed to with (sic) a judge only trial, unless there are circumstances with otherwise favour of (sic) a jury trial (such as the circumstances described in s 615(5)) would be unreasonable delay.”
- In my view, the applicant’s human rights have relevance, but those particular submissions ought to be rejected. At one level, the submissions characterise the delay to the applicant’s trial as being a consequence of the refusal of an application for a no jury order. That is not so. The delay to the applicant’s trial is the consequence of the suspension of jury trials. The making of a no jury order may have the consequence of reducing that delay, but declining to make a no jury order will not cause the delay.
- At another level, the submissions acknowledge the delay as being the consequence of the suspension of jury trials, but suggest that the failure to make a no jury order and not to proceed by trial by judge alone would cause the already existing delay to become unreasonable.
- Furthermore, it is submitted that such would be in contravention of the Human Rights Act. That is, it is submitted that a decision of the court could itself be, or could cause, a contravention of the applicant’s human rights. In my view, those submissions misconstrue the Human Rights Act, misunderstand the manner of its application, and thus fail to identify the true significance of that Act to section 614 and 615 of the Criminal Code.
- While s 32(2)(c), together with s 7 of the Human Rights Act identifies as a human right the entitlement of a person charged with a criminal offence to be tried without unreasonable delay, how a person is to enjoy, or benefit from, that (or any other) right must be ascertained from other provisions of the Act.
- The main objects of the Human Rights Act are set out in s 3. They are:
- to protect and promote human rights;
- to help build a culture in the Queensland public sector that respects and promotes human rights; and
- to help promote a dialogue about the nature, meaning, and scope of human rights.
- Section 4 prescribes the means by which the main objects are, primarily, to be achieved. Those means include, at paragraph (b), requiring public entities to act and make decisions in a way compatible with human rights and, at paragraph (f), requiring courts and tribunals to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights.
- In respect of the former, a ‘public entity’ is defined by s 9. By s 9(4), a public entity does not include a court or tribunal, except when acting in an administrative capacity. Section 58(1) makes it unlawful, subject to certain exceptions, for a public entity to act or make a decision in a way that is not compatible with human rights or, in making a decision, to fail to give proper consideration to a human right relevant to the decision. The decision, or decision-making process, of a court could only be unlawful pursuant to s 58(1) if the decision was made by the court when acting in an administrative capacity.
- The court, in making a no jury order pursuant to s 614 of the Criminal Code, upon satisfaction that it is in the interests of justice to do so, is acting in a judicial, not an administrative, capacity. A decision under s 614 cannot engage s 58(1) of the Human Rights Act. A decision to refuse an application for a no jury order cannot directly, nor indirectly through some imputed delay, contravene the Human Rights Act.
- The rejection of the applicant’s submissions concerning the Human Rights Act does not, however, mean that that Act has no application to s 614 and s 615 of the Criminal Code.
- As set out above, s 4(f) of the Human Rights Act prescribes as one of the means by which the Act’s main objectives will primarily be achieved is through requiring courts to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights.
- That means of achieving the main objects is given effect by s 48(1) which prescribes, in a substantive provision, the requirement to interpret all statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights. That requirement is imposed on courts and tribunals.
- Section 615 and the expression “in the interests of justice” contained within it since the enactment of the Human Rights Act must, to the extent possible that is consistent with its purpose, be interpreted in a way that is compatible with human rights. Particularly, in my view, the expression “in the interests of justice” must now be interpreted in a way compatible with a defendant’s human right to be tried without unreasonable delay.
- Interpreting section 615 in that way is, in my view, entirely consistent with the purpose of that provision. Sections 614 and 615 were inserted into the Criminal Code as part of a new Chapter 62, Chapter Division 9A, ‘Trial by judge alone’, by enactment of the Criminal Code and Jury and Other Acts Amendment Act 2008.
- The explanatory notes to the Bill which would become that amendment act noted that the then s 604(1) of the Criminal Code provided that, generally, unless the accused pleaded guilty to an indictable offence for which they had been committed they were deemed to require and were entitled to a trial by jury.
- It went on to observe that in a number of states and territories and some overseas jurisdictions, judge alone trials had been introduced. It then said:
“While a defendant’s right to a trial by jury is a key feature of the common law criminal justice system, and the jury system is an effective institution for ensuring community participation, judge alone trials may be appropriate in some cases. For example, in complex cases and cases involving significant pre-trial publicity”.
- Those two particular examples of complexity and pre-trial publicity were reflected in s 615(4)(a) and (c) respectively. However, they do not limited subsection (1) or the matters the court may consider in determining whether it is in the interests of justice to make a no jury order. This is made expressly so by the introductory words of s 615(4).
- It is in the interpretation by the court of the expression “the interests of justice” that a defendant’s right to trial without unreasonable delay is engaged. That expression must now be interpreted compatibly with that human right.
- It is in interpreting s 615(1) and thereby in informing the content of the test, not in the decision as to the application of the test, that the Human Rights Act imposes a requirement on the court. The interests of justice include trial without unreasonable delay.
- The circumstances in which that test is presently to be applied include indeterminate delay if the trial is to be by jury. In such circumstances, and where a defendant is willing to forgo their right to trial by jury, the making of a no jury order will most likely be in the interests of justice.
- All of this leads to the simple conclusion that making a no jury order may be in the interests of justice, not that failing to make an order may contravene human rights.
- The making of an order in this case is in the interests of justice.
- The application is allowed. I will make the no jury order.
- Published Case Name:
R v Logan
- Shortened Case Name:
R v Logan
 QDCPR 67
Horneman-Wren SC DCJ
17 Jun 2020