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- Unreported Judgment
R v Letran QDC 238
DISTRICT COURT OF QUEENSLAND
R v Letran  QDC 238
ANNA TU-UYEN LETRAN
1282 of 2016
Application for Judge-alone trial
12 September 2016 - Delivered Ex Tempore
12 September 2016
The trial proceed by way of Judge-alone trial.
M Spenser for the Crown
B Power for the defendant
Office of the Director of Public Prosecutions for the Crown
Robertson O'Gorman Solicitors for the defendant
- HIS HONOUR: I am concerned with an application for a judge-only trial. The conduct of this trial will be highly unusual. Apart from one Crown witness, who will be called to deal with, largely, formal matters, as best as I understand it, the trial will otherwise be conducted by way of admissions and agreed facts. There is to be some video evidence, but that evidence will be relied on simply to give context to a number of communications made between the defendant and one Sheena Padua.
- The charges against the defendant are count 1, that on or about the 23rd day of October 2014, at Durack or elsewhere in the State of Queensland, the defendant unlawfully supplied the dangerous drug cocaine to another person. Count 2 is that on the 4th day of April 2015, at Fortitude Valley or elsewhere in the State of Queensland, the defendant unlawfully supplied the dangerous drug cocaine to another person. Particulars provided by the Crown identify the particulars of each of the charges in the following terms:
Anna Tu-Uyen Letran sent a series of text messages to Sheena Padua enquiring about whether Sheena Padua could supply cocaine. The purpose of the enquiry was, ultimately, the supply of cocaine to Anna Tu-Uyen Letran’s friend.
- The Crown’s case, of course, then depends on the extended definition of “supply”, to which I will come in a moment. Returning to some of the circumstances of the text messages, it is not in dispute that the defendant communicated with the said Padua on the dates alleged; nor is it in dispute that the conversations were concerned with the sale and/or purchase of drugs. Some examples of these messages are as follows: on 23 October 2014, the defendant sent the following message to Padua:
Sheena, do you have four 8-balls? My friend wants to buy for around 600.
- Padua replies:
Rack or molly?
- It is the case that “rack” is a reference to cocaine and “molly” a reference to ecstasy and perhaps one other substance. The defendant replies “Rack,” that is, cocaine. Padua responds:
I can’t even get rack for that cheap myself, haha, cause my stuff isn’t touched or chopped up.
- Letran responds:
meaning “lots of laughs” ---
--- how much would you sell it for? I will tell her.
- And there is a reference to:
She needs it for the weekend.
- Thereafter, the communication continues, including references to Padua having to speak to her so-called boss about being able to acquire the drugs sought.
- In respect of count 2, 4 April 2015, the defendant, again, contacts Padua, and the following exchange took place:
Are you selling? Ray, bf
which I – presumably means best friend ---
--- wants. How much?
- Padua responds:
Twenty-five. Go to Julie or Hong.
- Later, the defendant responds:
How much though?
- Padua responds:
- The defendant responds with a question, “Rack?” again, a reference to cocaine. Padua replies:
- And then further communications take place.
- There is no dispute about the parties to the communications, nor as to the content of the communications, and what the context or meaning of those conversations was. As I have said, the video evidence that is intended to be relied on by the Crown was only intended to be made available to the jury to put the conversations in some form of wider context. Section 614 of our Criminal Code relevantly provides:
- In his written submissions, Mr Power, articulated or summarised the reasons he relies on. They are as follows:
- (1)If an accused person is committed for trial on a charge of an offence, or charged on indictment of an offence, the prosecutor or the accused person may apply to the court for an order (no-judge order) that the accused person be tried by a judge sitting without a jury.
- (2)The application must be made under section 590AA before the trial begins.
- (3)If the identity of the trial judge is known to the parties when the application is decided, a no-jury order may be made only if the court is satisfied there are special reasons for making it.
- Section 615 then relevantly provides:
- (1)The court may make a no jury order if it considers it to be in the interests of justice to do so.
- (2)However, if the prosecutor applies for the no jury order, the court may only make the no jury order if the accused person consents to it.
- (4)Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply —
- (a)the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury.
- The balance of section 615 has not been relied on before me, and would seem not to require any consideration. Recently, in the case of The Queen v Johnston  QDC 174, Judge Smith said, at paragraphs 37 to 40:
It is clear in this case that the test to be applied is whether it is in the interests of justice to make a no jury order (615(1)). Further as the identity of the trial judge is known, the defence must establish special reasons (614(3)).
- The term “special reasons” was discussed in R v Prisk and Harris  QSC 315 by Martin J at  as inter alia:
... special reasons are reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular weight. There must be some factor over and above the interests of justice ... but that does not mean that the case must be extremely unusual, uncommon or exceptional.
- As to the term “interests of justice”, this may include a variety of considerations relevant to the particular case, and should not be narrowly defined. This term was discussed in Mickelberg v The Queen (No 3) (1992) 8 WAR 236 by Malcolm CJ at 251:
The interests of justice in a 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 in the due administration of justice.
- I note that the defendant’s case does not fall within any of the subsections – section 615(4), but I also note that those are not exhaustive.
- I respectfully agree with those observations. In respect of section 614, subsection (3), there are, in my view, special reasons. That being necessary, in circumstances where the identity of the judge is known to the parties when the application is decided. The special reasons, are, first, the very limited nature of the factual evidence. Second, the application was filed well before the identity of the trial judge was or could have been known. Third, this is not a case where I have been exposed to any prejudicial material beyond that which will be tendered during the course of the trial. Next the fact finding role of the jury is not required as there are no contested factual issues. Finally, while by no means determinative, it has been agreed at the bar table that it would be appropriate and expeditious if I dealt with it.
- In his written submissions, Mr Power, articulated or summarised the reasons he relies on. They are as follows:
- (a)The legal complexity of the issues which would be problematic to communicate to a jury in the form of directions and even more problematic for a jury to understand and apply.
- (b)The evidence in the case will consist solely of a single document.
- (c)The subject matter of the offending (mainly schedule 1 dangerous drug) has the potential to create prejudice that would be likely to distract the jury from the complex legal task required of them and;
- (d)The matter can be dealt with far more expeditiously as a judge alone trial than having to empanel a jury.
- There is little dispute about the accuracy of the second and last of those matters, save for of course the expeditious manner of dealing with the trial has been compromise somewhat because of the lateness of the application, but that said, the second and last matter are largely uncontroversial, but in my view, do not advance the applicant’s case in any material way.
- The application turned on the first and the third of the matters raised by Mr Power, counsel for the defendant. Mr Spencer, for the Crown, opposes the application. At the heart of his opposition is the summary in his written outline, which provides as follows:
- The respondent submits that this is not a case where the discretion to order a no jury trial should be exercised.
- The applicant will not suffer any prejudices as the result of a trial by jury.
- The applicant’s case does not fall within any of the subparagraphs in section 615(4) of the Criminal Code, but those are not exhaustive.
- The question to be determined is whether the electronic communication satisfy the extended definition of supplying a dangerous drug. It is submitted that this is a simple question of fact, which should properly be determined by a jury.
- Simple directions can be given to the jury in accordance with the definition of supply in section 4 of the Drugs Misuse Act.
- This case does not involve any factors that are out of the ordinary, are distinct or particular, or carry any particular weight.
As a result, the respondent submits that this – that it is not in the interests of justice to make a no jury order and special reasons have not been established. The respondent submits that the applicant has not satisfied the requirements of section 615 of the Criminal Code and the application should be dismissed.
- Mr Spencer was content to rely on his written submissions in responding to the application. As to the prejudice point, it is, in my view, linked to the first of the matters raised, that is the complexity point. Mr Power went so far as to say that he considered it to be a relatively minor point in the scheme of things, but I agree that it is a matter to be taken into account.
- In this context, Mr Power, as I understood his submission, contended that there would be a temptation for a jury, given the uncontested factual matrix which would be before them, to leap straight to a verdict of guilty without having regard to my directions concerning the construction of section 4, and in particular section 4(b)(iii) of the Drugs Misuse Act.
- To use Mr Power’s words, he was concerned that having the unchallenged evidence concerning the conversations about drugs, the jury might be tempted to give only lip service to any directions I give them on matters of law. I can accept that there is an element of danger of that occurring, but that of course is by no means decisive. Judges give jurors complex directions on a range of conceptually difficult matters on a routine basis, and our criminal system proceeds on the basis that jurors will and in the vast majority of cases are seen to be able to absorb directions including complex directions and apply them. To this I would add that the usual criminal process involving indictable offences being dealt with by a trial by jury should not be readily departed from.
- Turning to the last matter, Mr Power submits that the complexity lies in the fact that the Crown is relying on the extended definition of supply, which in section 4(b) – 4(b)(2)(iii) provides:
Doing or offering to do any act preparatory to, in furtherance of, or for the purpose of any act specified in subsection (1).
- Subsection (1) relevantly provides supply means:
Give, distribute, sell, administer, transport or supply.
- The difficulty according to Mr Power, is that in circumstances were no definition of the phrase “to do any act preparatory to, in the furtherance of” etcetera, within the Drugs Misuse Act or any other legislation, and where there is no judicial commentary on the phrase, it would be necessary for me to formulate – after discussion with counsel, of course – an appropriate direction to the jury as to what that means for the purposes of the offences charged. I would then, after formulating that direction, give it to the jury and hope that they not only understand it, but would then apply it, before reaching any verdict. It is in that latter context that Mr Power, as I understood it, referred to the phrase “lip service”.
- In effect, it is submitted that there is a far less likely chance of an injustice occurring as a result of the jury leaping from the facts as established straight to a verdict of guilt in what would be, effectively, a statutory construction matter or a case involving matters almost purely of law. It is submitted that if those last two steps were taken from the equation, or out of the hands of the jury, there would be less likely of an injustice occurring. Those two steps being the jury having to understand and then apply my direction.
- While this is a finely balanced case, I have concluded that there is a real – that is, not a speculative – risk of an injustice occurring, and that could readily be avoided by a judge-only trial. Perhaps, to put it more correctly, I consider it is in the interest of justice to proceed in that way. In this context, and, again, having regard to the narrow focus of the case, I agree with the following observations of Judge Smith in Johnston at paragraphs 60 to 62, were his Honour said:
Fourthly it is in the interests of justice to have a judge only trial where the very narrow focus will be on the narrow issues of penetration and possibly consent. The trial would in my view be far more efficient than one involving a jury.
Finally I have had regard to the affidavit of Ms Mulcahy. It seems arguable that the disclosure of the penetration by the complainant at the conference on 6 August 2014 was produced in answer to a suggestive question by the prosecutor – a matter which may be very adequately dealt with by a judge in his or her reasons for judgment.
- I should finally add that by, while no means determinative, it is also of some relevance in this case that, due to state-wide internal technical issues, it is unlikely that a jury trial would be able to start today; and, indeed, at least at this stage, there is no guarantee that a jury trial would be able to commence tomorrow.
- For the reasons given, the order of the Court is that the trial proceed by way of a judge-alone trial.
- Published Case Name:
R v Letran
- Shortened Case Name:
R v Letran
 QDC 238
12 Sep 2016