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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v NGK  QDCPR 77
Indictment No. 454 of 2019
Section 590AA Application
District Court at Maroochydore
Judgment given 17 June 2020
Reasons published 1 July 2020
11 June 2020
The defendant’s trial is to be heard by a judge sitting without a jury.
CRIMINAL LAW – APPLICATION – TRIAL BY JUDGE ONLY – where the applicant is charged on indictment with strangulation in a domestic setting – where there is application made for a “no jury order” due to the COVID-19 pandemic – where it is unknown when jury trials will resume – whether a “no jury order” is in the interests of justice
Criminal Code (Qld) ss 614, 615
Criminal Procedure Act 1986 (NSW) s 132
Human Rights Act 2019 (Qld) ss 4(f), 32(2), 48(1), 58(1)
Jury Act 1995 (Qld) ss 57, 59, 59A
Youth Justice Act 1992 (Qld) ss 98, 102-105, Sch 1
Jago v District Court of NSW (1989) 168 CLR 23
R v Belghar  217 A Crim R 1
R v Fardon  QCA 317
R v Hanna & McAllum  QDCPR 50
R v Kissier  1 Qd R 353
R v Logan  QDCPR 67
R v Mitchell  QDC 89
R v Pentland  QSC 78
S. Lewis for the applicant
W. Slack for the respondent
Chelsea Emery & Associates for the applicant
Office of the Director for Public Prosecutions for the respondent
- By application filed 4 June 2020, the defendant, who is charged alone on indictment before this Court with an offence of strangulation in a domestic setting, applies for a no jury order pursuant to s 614 of the Criminal Code. That is, an order for trial by a judge sitting without a jury.
- The application is not premised in reference to any of the matters specifically noted in s 615(4) of the Code and neither, as the matter ultimately progressed, was there any identified issue as to the trial involving “the application of objective community standards”, such as are referenced in s 615(5) of the Code. As the matter was presented to the court and determined with the making of a no jury order on 17 June 2020, it was on the basis that there was no opposition to such an order raised by the respondent. The following are the reasons for that conclusion.
- The application is particularly premised on it being made at the request of the defendant, in circumstances where because of on-going restrictions due to the Covid-19 Pandemic, the court is not presently able to provide a listing for jury trial, which position is expected to remain for at least a matter of months rather than weeks. And more particularly, it was specifically noted that the trial, were it to be heard without a jury, could be listed in the week commencing 27 July 2020, when there are potentially two judges available to hear the matter in Maroochydore. As matters stand, no jury trials are able to be listed for that week. Accordingly, this application does not attract the operation of s 614(3), in any sense that the identity of the trial Judge is now known to the parties and the test to be applied is that pursuant to s 615(1) and whether it is considered to be in the interests of justice to make a no jury order.
- Reference was made to a number of prior decisions in respect of applications for a judge alone trial. In my view, the application of the test as to whether it is in the interests of justice to grant such an application is not assisted by reviewing or having regard to historical justifications for the involvement of juries in the criminal justice system, nor often generalised and/or subjectively influenced criticisms or comparisons of the alternative modes of trial and in that regard, it may be noted that whilst agreeing with the conclusion of the primary judgment in R v Belghar, each of the other judges in the Court of Criminal Appeal (NSW) expressly refrained from endorsement of such a review as was undertaken in the primary judgment.
- Also and in relation to assistance to be derived from interstate authority, it may be necessary to be alert for the potential influence of different statutory provisions, under which the issues arise. For instance and as was noted in Belghar, s 132 of the Criminal Procedure Act 1986 (NSW) originally only allowed a court to make an order for a Judge alone trial where there was agreement of the parties and as considered in that case, s 132(2) required the court to make such an order if there was agreement of the parties. Under the Queensland legislation, there is no such mandate if, as is effectively the case here, the parties agree to the making of a no jury order.
- The available discretion to make a no jury order, pursuant to s 615(1), is as observed by Chesterman JA in R v Fardon, to be “exercised by undefined and indeterminate parameters”, and to be determined by a test or conclusion that it is in “the interests of justice” to do so, also noted to be “so general and, indeed, abstract, that it takes on meaning only by consideration of the particular facts relevant to any application for a no jury order”.
- However and whilst it may be appropriate that no subjective pre-conception as to any general or relative merits of either mode of trial should be allowed to enter into the exercise of discretion, it is of particular note that it was the agreed position of the entire Court of Appeal in R v Kissier, that “[t]he process for the determination of the application that is reflected in the terms of s 615 does not require expression of a starting point on the application for a no jury order that both methods of trial are equally valid”, or even “a neutral position as to a preferred mode of trial”. Rather and after noting the contextual reference that he had made to s 604 of the Criminal Code, there was expression of favour for the earlier view stated by Chesterman J:
“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 or 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.”
- Notwithstanding that, as has been pointed out in other decisions this was strictly obiter, in my view, such an interpretation is consistent with the long standing acceptance of the role of the jury in our criminal justice system. Not only may this be seen, in an objective sense, in the value of the involvement of the community in the criminal trial process, but also in an understanding of a desirable attribute of having the guilt of another citizen decided by the agreement of at least 10, if not 12, other citizens. Neither, in my view, should that desirability be only seen in terms of being an attribute for the benefit of an accused person, or in terms of the right of an accused person to trial by jury. Rather, it may more readily be seen, from a broader community perspective, in the potential value of having such a group of persons, with differing but combined experiences in life being brought to bear on the questions to be decided, including, as is often the case, the assessment of credibility and reliability of witnesses. However, it may be seen that recognition, again from a community perspective, of a perception of importance to an accused person of the usual application of a mode of jury trial, is reflected in s 615(2), which requires the consent of an accused person before any prosecution application for a no jury order may be granted.
- It may therefore be seen that the legislative approach is in recognition of such generally accepted benefits of trial by jury and in that way, serving the interests of justice, in the sense of community interest in the just and appropriate determination and application of the more serious of the criminal laws of the community. It may be readily understood that it is particularly for such reasons that trial by judge alone is not allowed just for the asking and such generally understood precepts may be seen as particularly reflected in s 615(5), where there is express recognition that the court may (but is not required to) refuse to make a jury order if it is considered that the trial will involve the application of objective community standards. However, it may also be discerned that there is statutory recognition that the interests of justice, in an individual case, may not always be best served by jury involvement. Hence the particular, but also not limiting, recognition in s 615(4) of some general circumstances which may challenge the interests of justice being served by the involvement of a jury, in a particular case.
- Accordingly, it is in this statutory context that the court is required to consider whether it is in the interests of justice to make a no jury order in the circumstances of individual cases.
- In this instance, the prosecution case will substantially depend on the evidence of the complainant in support of the allegation made in the context of a relationship between she and the defendant, over about five years and which had developed to their engagement to be married, but which had in the months leading up to 6 April 2019, been characterised by more frequent verbal arguments. The incident the subject of the indictment occurred when they were preparing for bed after they had returned home from attending a wedding. It is noted that the couple had left the wedding in circumstances where the complainant had been upset by a comment made by the defendant about a female guest at the wedding. It is further noted that the allegation is that after the complainant threw a book at the defendant, he pushed her down on to the bed, grabbing her throat with one hand and pinning her down with his other arm. It is further contended that he forcibly pushed her down and squeezed her throat, so that she was unable to scream and could not expel air for about 30 seconds.
- On this application, it was identified that the defence position is that there was no such conduct as would amount to the strangulation of the complainant.
- Accordingly, the central issue in the trial will be as to the credibility of the complainant. That is a common feature of criminal trials and as discussed above, a feature often engaged in the general acceptance of the appropriateness of trial by jury. However, it is not of itself a feature which is necessarily inimical to trial by judge alone. It may be noted that assessment of credibility and reliability of witnesses is not an unfamiliar exercise for trial judges. Neither is it a feature specifically noted in s 615(5).
- A particular circumstance relied upon in this instance, is the understanding that due to the COVID-19 Pandemic, there is presently no ability to conduct a jury trial, whereas there is ready ability to conduct this matter as a judge alone trial. It was in this context that in the submissions of the respondent, reference was made to s 32(2)(c) of the Human Rights Act 2019 (Qld). However, the basis upon which it was contended that this was a relevant consideration was not developed beyond an assertion that the subsection “provides that an accused is entitled to a trial ‘without unreasonable delay’”. Moreover and as has been the subject of recent observations in R v Logan, there is potential misconception, to the extent that this reference suggests that s 32(2)(c) is itself a consideration providing support for the application.
- As is demonstrated in the observations in Logan, the decision of the court acting judicially in the exercise of discretion pursuant to s 614 of the Criminal Code, does not engage s 58(1) of the Human Rights Act. As is further demonstrated in those reasons, the consequence of s 48(1), in giving effect to s 4(f), as a means of primarily achieving the main objects of the Act, is to require the court to act in the exercise of its judicial function so that:
“(1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
- (2)If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.”
I also agree with the conclusion that it is in the interpretation of the legislative provisions, including the expression “interests of justice”, that a defendant’s right to trial without unreasonable delay is engaged, rather than in the application of that test to the circumstances of individual cases. And I further agree with the ultimate conclusion that:
“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.”
- However, I do so by some difference in reasoning and also as to any sense of singular weight which may be attached to any perceived willingness of a defendant “to forgo their right to trial by jury”, in the application of the interests of justice test.
- As has already been noted, that test is necessarily concerned with wider considerations, which may include not just the interests of the defendant in an appropriate form of trial but also the community interest in the same result. Not only is this particular right necessarily expressed in respect of a specific and singular interest, it is also expressed at a level of generality as to be largely unhelpful, in any positive sense, in the interpretation of the provisions allowing for a no jury order. As was conceded in oral submissions here, there is no suggestion of any unreasonable delay in the provision of a jury trial but rather and as expressed by counsel for the applicant, “an avoidable one” in the circumstances. Also the relevant requirements pursuant to s 48 of the Human Rights Act are ultimately only as to seeking interpretation, to the extent possible that is consistent with the purpose of the provision, “in a way that is most compatible with human rights”. And it must also be kept in mind that the provisions allowing for a no jury order are primarily directed at determination of the interests of justice having regard to the form rather than timing of the trial.
- However it does not follow that issues as to the timing of a trial will be an irrelevant consideration in the application of the broad interests of justice test. As was noted in R v Mitchell, whilst the common law of Australia does not “recognise a free-standing right to a speedy trial”, it is uncontroversial that the interests of justice in dealing with individual cases is informed and served by an understanding that courts do regard speed and disposition of cases as desirable and that “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.” But timing issues should not be allowed to detract from the essential focus of the interests of justice test being upon the form of trial. And this understanding may also be seen as reflected in the restrictions provided in s 614(2) and (3), which may be engaged in a negative sense by the timing of an application for a no jury order.
- In this case, there is no contention raised otherwise, nor any basis for concluding other than that the interests of justice are appropriately served by the making of a no jury order. The matter presents as a relatively straightforward one and where the interests of justice are served by allowing the matter to proceed when there is availability to hear it, in the manner which is proposed. In the absence of any identified concern as to the appropriateness of proceeding in this way in this case, it is the ability to do so rather than the present inability of proceeding with a jury trial, which is a particularly relevant consideration.
  217 A Crim R 1.
 Ibid at -.
  QCA 317.
 Ibid at .
 Ibid at .
  1 Qd R 353, even if it was, as noted, strictly obiter dicta.
 Ibid at .
 Ibid at .
 Ibid at -.
 R v Fardon  QCA 31 at .
 See ss 57, 59 and 59A of the Jury Act 1995.
 Cf: R v Hanna & McAllum  QDCPR 50 at  and R v Pentland  QSC 78 at .
  QDCPR 67.
 Ibid at -.
 Ibid at -.
 Ibid at .
 Ibid at .
 Ibid at .
 The provision in s 32(2)(e) may be contrasted with that in s 33(2), which is expressed in terms that “[a]n accused child must be brought to trial as quickly as possible” and may be seen as reflective of different policy considerations which underlie and are also expressed as a youth justice principle in the character set out as Schedule 1 to the Youth Justice Act 1992, at item 7 (see also s 3). Notably also, in that different context, the legislation allows for an election only by a legally represented accused child as to whether the trial before a Childrens Court Judge is to be without a jury: see Youth Justice Act 1992 ss 98 and 102-105. Although, s 105(c) permits of an overriding exercise of discretion by a Childrens Court Judge, if it is decided “in the particular circumstances it is more appropriate”.
  QDC 89 at .
 Jago v District Court of NSW (1989) 168 CLR 23.
 Ibid at 44-45.
- Published Case Name:
The Queen v NGK
- Shortened Case Name:
The Queen v NGK
 QDCPR 77
17 Jun 2020