DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment 1327 of 2009 with an offence of indecent treatment of a female child under 16 years alleged to have been committed on a date unknown between 7 January 2001 and 25 January 2001. The trial of this matter is set for February 2010 in Brisbane. 

2. [2]
   Application is made for a no jury trial. The Crown opposes the application.

The Legislation

3. [3]
   Ordinarily, an accused “shall be tried by a jury”. (Section 604 of the Criminal Code).  That a trial must be by jury is subject, relevantly, to Chapter Division 9A of the Code.  Section 614 and section 615 of that Division provide, relevantly, as follows:

4. [4]
   Circumstances in which the court may make or refuse to make an order for a no jury trial are provided in s 615. The circumstances there referred to are not exclusive. The court has an unfettered discretion to make an order for a no jury trial if the court “considers it is in the interests of justice to do so”^[1].

In the Interests of Justice

5. [5]
   In TVM v Western Australia (2007) 180 A Crim R 183, McKechnie J considered similar legislation in Western Australia.  In relation to the phrase “in the interests of justice”, His Honour referred to a number of decisions wherein the phrase was considered, noting that consideration of the interests of justice arises in many contexts.  Among the decisions referred to were those of Malcolm CJ in Michelberg v R (No. 3) (1992) 8 WAR 236 and Wisbey DCJ in The State of Western Australia v Veskovich [2005] WADC 111.  The latter decision was also in relation to the no jury legislation in Western Australia.  The following passages were quoted by McKechnie J:

“The interests of justice in a particular criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial.  The interests of justice also extend to the public interest and in due administration of justice.”^[2]

“The expression ‘in the interests of justice’ is not defined.  But it is reasonable to assume that it refers to a fair trial according to law.  Essentially it appears to me that it is only if there is a likelihood that a fair trial according to law may not eventuate in a jury trial that the discretion proposed in s 118(4) is enlivened.”^[3]

6. [6]
   McKechnie J concluded as follows:

“[28] The phrase ‘the interests of justice’ is not an expression capable of easy articulation or explanation because it is conclusionary in its nature.  Necessarily, a judge takes into account many factors before concluding where the interests of justice may lie.  The phrase ‘the interests of justice’ is devoid of content except where it is given form by the particular facts and circumstances of a case. 

[29] Both Malcolm CJ in Mickelberg, and Wisbey DCJ in Veskovich, pointed to the importance of a fair trial and it is undoubted that the fairness of a trial will be an important component of the interests of justice. It can hardly be in the interests of justice to embark upon an unfair trial before a jury where the means are at hand to militate against the unfairness by ordering a trial by judge alone. A common example of unfairness is pre-trial publicity. Arthurs provides an extreme example of the corrosive and prejudicial effect of pre-trial publicity, but it is not necessary for an applicant to satisfy those extremes in order to persuade a court that in fairness the interests of justice might require trial by judge alone to overcome any lingering prejudice. I use the words 'lingering prejudice' because it is also both the law and the experience of the law that juries are, when properly directed, able to put aside prejudice and sympathy, and deliver verdicts on the facts in a dispassionate manner. Long experience with juries, which I cannot completely discount, has provided me with many examples where juries have delivered true verdicts, despite extraneous influences being brought to bear.”^[4]

McKecknie J further pointed out that it is clear that “the interests of justice are not coterminus with the interests of an accused”. 

7. [7]
   I, respectfully, agree generally with the observations of McKechnie J.

Issues

8. [8]
   On behalf of the applicant, the court was informed that the trial will not involve a factual issue that requires the application of objective community standards.

9. [9]
   This application is based on two grounds. Firstly, it is argued that pre-trial publicity about unrelated convictions of the applicant may improperly affect a jury’s deliberations. Secondly, it is argued that the conduct of the defence case will involve disclosing, at least, that the applicant had been charged with other offences of a sexual nature against women and this disclosure may improperly affect a jury’s deliberations.

Background

10. [10]
    In middle to late January 2006, the applicant was charged with three counts of indecent assault against three women. The assaults involve touching and grabbing the women in the surf at Maroochydore and Alexandra Headlands. In relation to one complainant, the physical contact involved grabbing her around the leg, and, a little later, grabbing her around the arm and around the waist from behind. In relation to another complainant, the physical contact involved touching her on the back and later putting his hands around her breasts, rubbing his hands down her body to her waist and placing one hand inside her groin. In relation to the third complainant, the physical contact involved touching her down the left hand side, brushing his hand right down her leg to her ankle and then being on top of her as she rode a wave.

11. [11]
    The allegations in the pending trial, as contained in the complainant’s police statement, are as follows:

“We (a group of people) all went swimming except for my mum and my younger sister who was only four at the time.  I remember that it was a hot day and the water was dark.  I was wearing a one piece swimsuit and it was from school in South Africa.  I could swim at the time and I would put my head under water.  We were all playing in the water, playing water games and I remember that Johannes Petrus Pretorius approached me and was standing next to me on my right side and with one of his hands he started to tickle my vagina on the outside of my bathing suit.  He tickled my vagina for about five to ten seconds.  I thought this was wrong and I swam away.  Johannes Petrus Pretorius approached me a second time within ten minutes and again started to tickle my vagina on the outside of my bathing suit for about the same time as before.  I then swam away from him a second time.  I was only twelve years old at the time and I knew what Johannes Petrus Pretorius had done was wrong but I didn’t understand how wrong it was at the time.”

12. [12]
    In relation to the January 2006 charges, the applicant had three trials. Each trial was held in Maroochydore and each trial was in respect of all three charges. The first trial resulted in verdicts of guilty but the convictions were quashed on appeal and a re-trial ordered. The second trial resulted in the jury being unable to agree upon verdicts and the jury was discharged. The third trial resulted in verdicts of guilty in respect of all three charges. This trial concluded on 3 November 2008. The applicant was sentenced to 12 months imprisonment, wholly suspended, and fined $2,000.

13. [13]
    The publicity associated with the previous trials was significant. However, it was largely confined to the north coast region. The applicant complains, in particular, that publicity about the previous trials and the applicant’s convictions is available on the internet. Should anyone care to search the applicant’s name, this adverse publicity would be readily available.

Applicant’s arguments

14. [14]
    In relation to the first ground for the application, it was argued on behalf of the applicant that as the nature of the applicant’s previous and current offences is similar, the applicant “is concerned about the court’s ability to control members of the jury accessing electronic media (internet)”^[5].

15. [15]
    In support of this argument, the applicant relied upon the judgment of Mason CJ and Toohey J in R v Glennon^[6].  A paragraph on page 604 of that judgment was set out in the applicant’s written submissions at para 19, but the written submissions reflect a misunderstanding of the first sentence of the paragraph.  The written submissions should have quoted the passage as follows:

“Knowledge of an admissible prior conviction for a similar offence stands in a different position from other prejudicial information^[7].  Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles (Maxwell v Director of Public Prosecutions [1935] A.C. 309 at p. 31) and the relevant issue of reasonable and full reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk.  It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial (Reg. v George (1987) 9 N.S.W.L.R. 527 at p. 533).  And, if the trial proceeds and results in a conviction, for a court of criminal appeal to decide whether the accused has been deprived of a fair trial.  But it is important to distinguish between cases in which the jury are made aware of a prior conviction during the course of a trial and cases in which such awareness is not established.  As McGarvie J. acknowledged, ‘[t]here is not an absolute insistence by the law that a jury have no knowledge of a prior conviction of an accused on trial’.  His Honour went on to conclude that this case was exceptional because the prior conviction was for an offence of the same nature as the offences charged.”

However, the full text of the relevant paragraph was not quoted in the written submissions.  The last sentence of that paragraph, of great significance in the context of this argument, was not included.  The concluding sentence is this:

“However, this conclusion is not to the point in the absence of a legitimate finding that there was a likelihood of awareness of the conviction or at least a substantial risk of awareness.”

16. [16]
    In this case, the possibility that a juror, at the start of the trial, would recall or know of the publicity of the applicant’s convictions, is remote. That much seems to be accepted on behalf of the applicant as the concern expressed by the applicant was that a juror may, during the trial, search the applicant’s name on the internet and so learn of the previous convictions.

17. [17]
    It is not uncommon that accused come to trial with earlier convictions and a search of the accused’s name on the internet, in a number of cases, would reveal previous convictions.

18. [18]
    However, juries are routinely directed, and a jury in this matter would be directed, that they must return verdicts according to the evidence only, that they must ignore anything they may hear or read about the case out of court, and that they must avoid the risk of any external influence on their minds. Importantly, the trial judge in this case could, and, in my respectful view, should, direct the jury to the effect that in respect of every accused in every criminal trial, it is a criminal offence punishable by two years imprisonment for a juror to make any inquiry in any way about an accused.

19. [19]
    The court must proceed on the assumption that, ordinarily, jurors will follow the directions given by trial judges:

“The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges.  It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.”^[8]

“… Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having a criminal jury trial. …”^[9]

20. [20]
    In this case, the defence intends placing before the tribunal of fact that the applicant had been charged with unrelated sexual offences against women, prior to the complaint in this matter being made to police. In those circumstances, there would be far greater temptation for jurors to access the internet to investigate the outcome of the charges. However, to do so would be in blatant defiance of the trial judge’s directions and involve the deliberate commission of a criminal offence. In these circumstances, notwithstanding the greater temptation, I believe it unlikely that a juror would make such investigations.

21. [21]
    In relation to the second ground for the application, the written submissions refer “to the manner in which the applicant may be forced to conduct his trial” and that it “would be difficult, if not impossible, to cross examine the complainant and the complainant’s witnesses in any meaningful manner without disclosing the existence of the former offences with which the applicant was ultimately convicted, following three trials”. (emphasis added).

22. [22]
    In oral argument, it became clear that the defence intends conducting the trial by putting to the complainant to the effect that the allegations against the applicant are fabricated, and by cross-examining the complainant to the effect that such fabrication was prompted by the complainant’s knowledge that the applicant had been previously charged with sexual assaults against women in the surf.

23. [23]
    It is not suggested by the Crown that the evidence of the previous charges is other than inadmissible in the hands of the Crown. The Crown has no intention of introducing this evidence, nor relying upon it. Consequently, the evidence which is of concern to the applicant will only be placed before the jury by the defence as a result of a tactical decision to do so. Reasonable minds might differ as to the value of this tactic. Be that as it may, it is obviously thought by the applicant and his legal representatives that this tactic enhances the applicant’s chances of success at trial.

24. [24]
    It seems to me that it would be incongruous to conclude that the applicant is thereby exposed to an unfair trial. The relevant evidence is only admissible in the hands of the defence. The introduction of this evidence will not be as a result of any unfairness to the applicant. The applicant will receive a fair trial according to law before a jury.

25. [25]
    However, that may not be an end to the matter. McKechnie J noted, “the fairness of a trial will be an important component of the interests of justice”^[10] (emphasis added).  It seems to me that the absence of unfairness in a jury trial may not be determinative of the application against the applicant.  It may not necessarily follow that because the introduction of the relevant evidence will not be as a result of any unfairness to the applicant, it therefore could not be in the interests of justice to order a no jury trial.

26. [26]
    Prior to the introduction into the code of ss 614 and 615, an accused in the position of the applicant would have had only the choice of introducing the relevant evidence before the jury and thereby running the risk that the evidence may improperly affect the jury’s deliberations, or, running the trial before the jury without introducing the relevant evidence and thereby foresaking the perceived advantage of the use of that evidence. The introduction of ss 614 and 615 obviously broadens the possibilities as to the conduct of a trial.

27. [27]
    Notwithstanding that the introduction of the relevant evidence will not be as a result of any unfairness to the applicant, I proceed to a consideration whether, in the circumstances of this case, it would still be in the interests of justice to order a no jury trial.

28. [28]
    As the passage quoted from Glennon in para 15 above makes clear, “Knowledge of an admissible prior conviction for a similar offence stands in a different position from other prejudicial information”. (emphasis added).  It is the reception of inadmissible evidence of a prior conviction that is said to offend against “one of the most deeply rooted and jealously guarded principles of our criminal law”. 

29. [29]
    In this case, the evidence of the previous charges will not be received as inadmissible evidence. Further, the evidence will refer to previous charges only and there will be absolutely no need to introduce evidence that the charges resulted in convictions.

30. [30]
    However, the evidence which the applicant wishes to place before the jury clearly has the potential to improperly affect a jury’s deliberations. It is submitted on behalf of the applicant that directions by the trial judge will not safeguard the applicant from this prejudice. The Crown submitted to the contrary and suggested specific directions that a trial judge might give.

31. [31]
    In my view, proper directions by the trial judge would guard against misuse of the evidence and would guard against the evidence improperly affecting the jury’s deliberations.

32. [32]
    I do not wish to be taken as suggesting what directions a trial judge ought give. That is a matter entirely for the trial judge. However, in my view, the following directions would be appropriate and would safeguard the applicant against the potential prejudice:

• Evidence that a person has been charged with offences is in no way evidence that the person is guilty of the offences.  You must not speculate as to the outcome of the charges and you must not draw any inference adverse to the accused because of the evidence that he was charged with those other offences.
• The evidence of the other charges is not evidence at all against the accused in this trial.  It does not support the Crown case in any way and the Crown does not rely upon that evidence at all.  It would be most improper for you to reason that because the accused was charged with those offences, he is a person who has a tendency to commit offences of that type. 
• The evidence may only be used in assessing the complainant’s credibility.  In particular, it is to be used in considering whether you think that the complainant’s allegations that the accused touched her may be fabricated because she learned of the other charges. If you think the complainant’s evidence may be fabricated, you must acquit the accused.

33. [33]
    Pre-eminently, the trial will involve the assessment of credibility. As is often noted, a jury brings to such a task a wealth of experience. The jurors come from a wide variety of walks of life. That is to be compared with the experience of a single finder-of-fact, even when that person is a judge.

34. [34]
    Having taken into account all matters referred to above, I have concluded that it is not in the interests of justice to make a no jury order. The application is refused.