R v Ferguson[2009] QDC 158

HIS HONOUR: This is the third application by the defendant for a permanent stay of a charge of indecent treatment of a child some years ago. The first such application before Judge Forno which, I understand, was based on the amount of adverse pretrial publicity, was unsuccessful.

On the 1st of July last year a similar application following more publicity was successful, but the permanent stay order didn't survive an Attorney's appeal to the Court of Appeal, which can be found reported at [2008] QCA 277. The Court of Appeal's reasons came out on the 8th of August 2008, a month and 11 days before amendments to the Criminal Code in section 614 and following came into effect. Those amendments have significantly changed things.

There was an unsuccessful application to the High Court of Australia for special leave to appeal against the Court of Appeal's determination. As I read the transcript, [2009] HCATrans 16, no guidance for today's purposes is to be found there. The High Court considered that there was insufficient doubt regarding the Court of Appeal's view that, notwithstanding the absence of a specific provision in the legislation, section 669A(1A) of the Code, enabling the Court of Appeal to make orders, power to do was necessarily there to warrant the granting of special leave.

The Court of Appeal has left open the way for an application, such as today's, to be made. The determination was that the primary Judge had considered at least one matter which he ought not to have, namely the weakness of the prosecution case from some points of view. It was also determined that his Honour, although not asked to do so, ought to have given consideration to section 47 of the Jury Act.

What is of concern is providing the accused person with a fair trial which, in the present context, would mean one before a jury, none of whom was "overwhelmed by a perception that the expectation of the community is that the respondent must be convicted whatever the witnesses and the Crown case may be, "to quote paragraph 57 of the Court of Appeal's judgment.

The Court of Appeal expressed confidence, which courts customarily do, that juries "are aware consciously or subconsciously of the long tradition in this country of criminal trials in which 12 impartial men and women are the deciders of fact of the unquestioned integrity of the process and its importance to society's fabric" – I have quoted paragraph 43 of the reasons – and that a jury properly instructed could be relied on to avoid giving effect to whatever residual impressions they might have of the adverse pretrial publicity, which, I accept for the purposes of today, has continued, although that has not been specifically demonstrated in evidence placed before me.

In paragraph 55, the Court of Appeal expressed the view that the conclusion the subject of the appeal that the accusedcouldn't be convicted on the basis of a fair-minded verdict of a jury was premature, making reference then to section 47 of the Jury Act. An example given in the section attached tos ubsection (1) indicates the legislature's recognition that “prejudicial pretrial publicity may be a special reason for questioning persons selected as jurors or reserve jurors in the final stage of the jury selection process”. Questioning is to be controlled by the presiding judge. The purpose is to ascertain the impartiality or otherwise of those who have been provisionally empanelled.

As I read the Court of appeal's decision, it's not open to me to reach a conclusion that a fair trial is not possible before section 47 is "deployed", see paragraph 56.

This is also a significant piece of assistance for me in footnote 15, which indicates that apart from a decision more than 70 years old in the Northern Territory, there seems to be no instance in Australia of a permanent stay being ordered because of pretrial publicity. The footnote goes on to note a couple of exceptions in England to the proposition in that jurisdiction.

It appears to me that I'm constrained by the Court of Appeal's decision to reject the application for a permanent stay.Section 47 has not been invoked, nor has the possibility of pretrial publicity being dissipated that's referred to in paragraph 58 of the reasons really been looked at. For what it's worth, my own impression is that in recent times, the extent of publicity has declined. Notwithstanding that there is likely to be available on the internet everything which has ever been available there.

In the circumstances, I won't accede to the application for a permanent stay, although for the future, it might be noted that section 615(4)(c) of the Criminal Code represents what may prove to be an important acknowledgement by the legislature of the importance of significant pretrial publicity that may affect jury deliberations.

There's no opposition by the prosecution to a no jury order being made under section 615. I am in no doubt that the condition set out in subsection (4)(c) is satisfied here. There have been a number of orders whose effect is that there will be trial by Judge alone, the most helpful of which is Clough [2008] QSC 307 in which Mackenzie J published extensive reasons.

Those were acknowledged by Judge Robertson in the Queen v.SAA [2009] QDC 5, when a no jury order was made in respect of a count of maintaining an unlawful sexual relationship to which an offender who had pleaded guilty to four counts of indecent dealing had pleaded not guilty. There were some technical aspects of the maintaining offence which his Honour thought it might be preferable to have dealt with by a Judge.He was also fortified by the removal from the proceeding of apossible issue about indecency which section 615 (5) indicates is something requiring the application of objective community standards which, in normal circumstances, a jury ought to pronounce upon rather than a judge sitting alone. The reasons in SAA, and I think Clough bear on this aspect which causes me some concern.

Although Mr Smith in support of the application is not in a position to concede that the conduct which the Crown relies on represented indecent treatment of the complainant, assuming it happened, it is almost inconceivable that that can really bean issue at trial.

What's asserted is that a man of mature years digitally interfered with the genitalia of a very young girl. In a practical sense it seems to me there is no issue whether by ordinary community standards that was indecent treatment. In my opinion, it clearly was, subject to defences that the prosecution might find itself have to negative by way of accident or mistake, et cetera.

The issue in the trial is likely to be whether if the complainant suffered the treatment which she told the police she did, that was perpetrated by the defendant or, as her cross-examination in the pre-recording has it, not by him at all but by another man who was there, and also, if Iunderstand things correctly, one who may have been convicted for something similar in the past.

For these reasons, I think that given the prosecution's attitude, it's in the interests of justice and a fair trial for the defendant for the no jury order to be made. The possibility of that which the Criminal Code now offers provides an important avenue for assuring that an accused person can, by resort to that mode, get a fair trial which may arguably not be available before a jury because of things which have happened.

The third aspect of the application before me concerns the excluding of the complainant's evidence in re-examination which involved the desired response to a leading question by the prosecutor suggesting that it was the accused and not the other person after all who had been responsible for the conduct complained of.

If there is to be a trial before a Judge alone it seems to me preferable for the determination of the admissibility of that evidence in re-examination to be determined at the trial.