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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v RT  QDCPR 30
17 April 2020
District Court of Queensland at Maroochydore
17 April 2020
Cash QC DCJ
I order that the applicant be tried by a judge sitting without a jury.
CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – ELECTION – where applicant charged with one count of choking – 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 outcome of the trial will depend upon assessment of credibility – whether a “no jury order” is in the interests of justice
Criminal Code (Qld), s 614, s 615
Jago v District Court of New South Wales (1989) 168 CLR 23
R v AJB  QDC 169
R v Fardon  QCA 317
R v Kissier  1 Qd R 353
R v Qaumi & Ors (No 14)  NSWSC 274
TVM v State of Western Australia (2007) 180 A Crim R 183
SA Lynch for the applicant
AQ Stark for the respondent
Smith Criminal Law for the applicant
Office of the Director of Public Prosecutions for the respondent
- The applicant, [RT], applies for an order that he be tried by a judge sitting without a jury. Such an order, called a “no jury order”, is permitted by section 614 of the Criminal Code (Qld). The applicant faces a single charge alleging that in December 2017 he choked his domestic partner without her consent. The matter is not presently listed for trial. There was a trial listing in February 2020 but the matter was not reached.
- A court may make a no jury order if it considers it in the interests of justice to do so. What is in the interests of justice is not limited. The specific examples that might warrant a no jury order, as set out in section 615 of the Code, are not of present relevance. The basis for the application is the likely delay before the applicant could face a trial by jury. The world is in the grips of what has come to be known as the COVID-19 pandemic. Many aspects of the normal functions of society have been changed in order to combat the spread of the disease. On 16 March 2020 all new jury trials in the District Court were suspended. While it cannot be known when jury trials might resume, it is certain that this will not be before July 2020. The applicant submits that it is in the interests of all concerned that the allegation be heard and determined sooner than that.
- The prosecution oppose the making of a no jury order, at least at this time. They submit that a delay of about three months is not so significant as to justify departure from the ordinary process of trial by jury. A concern was also raised about what would happen if the applicant were found guilty and faced the prospect of actual imprisonment. Otherwise, in fair and helpful submissions, the prosecution do not identify any matter or matters that would make this an unsuitable case for determination by judge alone. In particular, it has not been suggested that the trial would involve the application of objective community standards.
Summary of allegation
- It is alleged the applicant and the complainant were in a relationship for many years. By late 2017 the relationship had soured. An argument developed around the topic of selling their home and building a new one elsewhere. While in the kitchen it is alleged the applicant tried to punch the complainant. During this movement the complainant’s hand came into contact with the applicant’s face. After this the applicant put an arm around her neck from behind held her tightly. The complainant alleges she was held in this way for 10 to 15 seconds, it was hard for her to breathe and she felt light headed and dizzy.
- The applicant was not interviewed by police.
What is in issue?
- Prior to the hearing the issue to be decided was identified as “whether the complainant was choked”. At the hearing this was expanded upon. Proof of the applicant’s guilt will depend upon proof beyond reasonable doubt of each element of the offence. Proof of each element rests upon the testimony of the complainant. In practical terms, the outcome of the trial will be decided based upon an assessment of the credibility and reliability of the testimony of the complainant, at least as it relates to the events described above and forming the basis of the charge.
- There may be a secondary question about whether what occurred in the kitchen proves the applicant “choked” the complainant. Both parties seem content to proceed on the basis that what must be proved is the cessation of breath, at least temporarily, rather than a restriction of breathing. The prosecutor anticipates evidence from the complainant that will prove she was choked.
How is the trial to be conducted?
- The parties have agreed that a trial without a jury can be conducted in a manner that is efficient and compliant with current public health guidelines and directives. The prosecution will call four witnesses, all of whom can testify via telephone or video link. The applicant does not oppose orders permitting the complainant to give evidence from a remote room via video link and with a support person present in the room, but not closer than 1.5 metres to the complainant. The parties say there are no exhibits to be tendered at the trial. While the defendant and lawyers will attend court, everyone will be spaced apart so as to comply with “social distancing” requirements. The applicant is on bail and the prosecution agree that there is no need for a police officer to attend court to keep custody of the applicant.
- 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 throughout the year. The matter may come to be listed before any one of these judges. There is no need for the applicant to show there are special reasons for making a no jury order.
- The mere willingness of a defendant to forgo trial by jury is not itself sufficient to justify a no jury order. It remains necessary for the applicant to satisfy the court 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. None of the disqualifying factors identified in the legislation are of relevance. While the determination of the applicant’s guilt will depend heavily upon the assessment of the credibility of witnesses, this is not something that involves the application of “objective community standards”.
Consideration and disposition
- The present circumstances are unusual. There is no real chance of a jury trial before the middle of the year. I am unable to guess when jury trials may resume. While the common law of Australia does not recognise a free-standing right to a speedy trial, I consider the following statement of Brennan J in Jago v District Court of New South Wales to be uncontroversial:
“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.”
- 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 issues to be decided do not require the application of objective community standards. There will be a delay of at least some months before the applicant’s trial could proceed with a jury.
- Against this the prosecution argue that a delay of two or three months is not so great as to justify a no jury order. I do not accept this submission. As noted above there is a desirable goal of the speedy disposition of criminal allegations. If the procedures of the Court can be moulded to permit an early trial, without causing unfairness or prejudice to any of the parties, that should occur. The secondary concern of the prosecution is what is to be done in the event the applicant is convicted? If convicted after a trial, a sentence involving some time in custody is a possible outcome. As things presently stand the unnecessary movement of persons into custody is to be avoided. While this is a matter of some concern it can be managed appropriately if the need arises, such as by delaying sentence to a later date.
- 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.
 R v AJB  QDC 169.
 Criminal Code (Qld), section 614(3).
 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 -.
 Criminal Code (Qld), section 615(5); 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.
- Published Case Name:
R v RT
- Shortened Case Name:
R v RT
 QDCPR 30
Cash QC DCJ
17 Apr 2020