R v Dennis[2025] QDC 107

1. Application

1. [1]
   The defendant is charged with one count of rape, allegedly committed upon a cellmate on or about 16 October 2023 at the Brisbane Correctional Centre.
2. [2]
   The matter is listed for trial in the District Court of Brisbane during the week commencing 8 September 2025. The identity of the trial judge is not known to the defendant.
3. [3]
   The defendant has made a pre-trial application pursuant to section 590AA(2)(da) of the Criminal Code 1899 (Qld) (Criminal Code) for an order that the trial proceed by a judge sitting without a jury under section 615 of the Criminal Code.
4. [4]
   The Crown opposes the application.

1. Relevant legislation and authorities

5. [5]
   Sections 614 and 615 form part of Chapter 62 Division 9A of Part 8 of the Criminal Code which concerns trials conducted by judges alone, without a jury.
6. [6]
   Section 614 permits the making of an application for an order that the accused person be tried by a judge sitting alone without a jury. Although it is common ground that there is no “starting assumption” that there should be a trial before a jury^[1], practically speaking, without an application for a judge-alone trial being made, an accused person who is committed for trial on a charge of an offence or charge on indictment of the offence would be tried by a judge sitting with a jury.
7. [7]
   Section 614 of the Criminal Code provides:

3. 614
   Application for order

3. (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 jury order) that the accused person be tried by a judge sitting without a jury.

3. (2)
   The application must be made under section 590AA before the trial begins.

3. (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.

3. (4)
   Subsection (3) does not limit section 615 or any other restriction on making a no jury order imposed by this chapter division.

3. (5)
   The court may inform itself in any way it considers appropriate in relation to the application.

3. (6)
   For subsection (2), the trial begins when the jury panel attends before the court.

8. [8]
   Section 614(5) specifically provides that a court may inform itself in any way it considers appropriate in determining whether to make an order to proceed without jury.
9. [9]
   Section 615 (1) sets out that the court has a discretion to make a no jury order if “it is in the interests of justice to do so”. Section 615 (4)-(5) of the Criminal Code relevantly provides that:

3. (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—

3. (a)
   the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;

3. (b)
   there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury;

3. (c)
   there has been significant pre-trial publicity that may affect jury deliberations.

3. (5)
   Without limiting subsection (1), the court may refuse to make a no jury order if it considers the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.”

10. [10]
    Chapter 9 of the Criminal Practice Rules 1999 (Qld) sets out the process by which a person may apply to the court for a pre-trial direction or ruling under section 590AA, and the information that must be contained within an accompanying affidavit which must be filed and served together with the application.^[2]

1. General Principles

11. [11]
    In R v Sica [2011] QSC 261, at [15] the Chief Justice explained that the discretion under s 615 is unfettered. The overriding consideration is what is in the best interest of justice.
12. [12]
    It is a foundation principle of our legal system – that an individual is entitled to a fair and unprejudiced trial. Deane J said in Hinch v Attorney-General (Vic) [1987] HCA 56; 164 CLR 15, Deane J said:^[3]

3. The right to a fair and unprejudiced trial is an essential safeguard of the liberty of the individual under the law. The ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law. Indeed, it is a touchstone of the existence of the rule of law.

13. [13]
    Section 615 enables the court to make the appropriate order to protect against an unfair or prejudiced trial.^[4] 
14. [14]
    Burns J has helpfully set out the propositions that emerge from the case law and the plain meaning of ss 614 and 615 and r 42A in R v Pentland [2020] QSC 78; 4 QR 340 (at [9]). These propositions are uncontroversial. I note the following:

    1. the consent of the Crown is not required;
    2. the court may make a no jury order if it considers it is “in the interests of justice” to do so: s 615(1);
    3. the interest of justice is the overriding consideration;
    4. each application must be determined in the context of its own facts;
    5. the desire of the applicant is relevant but does not overshadow the requirement of the order being in the interest of justice.^[5]
    6. Relevant factors include the complexity of length of a trial and whether the trial would be overly burdensome on a jury;
    7. the onus is on the applicant to establish a no jury order is in the interests of justice;
    8. the court may inform itself in any way it considers appropriate in relation to the application: s 614(5);
    9. although the credibility of witnesses may be a critical determinative factor in determining innocence or guilt, this does not necessarily mean a trial should proceed by jury,^[6] give a trial judge’s training and experience.

13. What is meant by the phrase “interests of justice”?

15. [15]
    The authorities make it clear that the phrase is not capable of any precise definition and instead requires the Court to consider whether an order is appropriately made to ensure a fair and unprejudiced trial in the circumstances of the case.^[7]
16. [16]
    An example of a trial affected by prejudice would include circumstances in which inadmissible evidence has been admitted, and/or publicity was of such a magnitude and content that a jury may not escape its influence.
17. [17]
    The onus is on the applicant to demonstrate it is in the interests of justice that such an order be made.
18. [18]
    In Queensland, unlike in some other States, the judge-only trial is not solely at the election of the accused.

13. Submissions

13. Applicant’s Submissions

19. [19]
    The applicant apprehends prejudice. The prejudice is said to be real and not speculative for two reasons. First, because of the circumstances of the alleged offence a jury will be aware the defendant was in custody at the time the offence allegedly occurred. Second, the jury may infer, given evidence to be given from some witnesses, that the defendant was in protective custody for other sexual assault related matters. At the hearing of the application, Counsel for the defendant also informed the Court of other matters which may arise on cross-examination which could also identify or imply to a jury the reason for the defendant’s being in custody.
20. [20]
    The result of these three matters is that the defendant is concerned he will not obtain a fair and unprejudiced trial.

13. The Crown’s Submissions

21. [21]
    In written submissions, the Crown opposed the order sought by the applicant on the basis that unfair prejudice had not been demonstrated, or alternatively, that any prejudice could be met with appropriate directions given to the jury by the trial judge.

13. Consideration

22. [22]
    To succeed, the applicant must demonstrate “the interests of justice warrant the Court exercising its discretion in favour of making a no jury order”.^[8]
23. [23]
    There is an assumption at common law that jurors will understand and follow the instructions and directions given to them by trial judges. It is also assumed that juries will be impartial and not impacted by matters of prejudice.^[9]
24. [24]
    The apprehension of the applicant is that the jury will misuse or overvalue information about his incarceration and the reason for his incarceration resulting in unfair prejudice. I note the High Court’s comments in Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 that:

3. [91]
   Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted.

25. [25]
    Is there a real and substantive risk that this information will be misused unfairly?^[10]  A similar issue regarding knowledge of previous convictions arose in the matter of R v Glennon [1992] HCA 16; 173 CLR 592 (Glennon). In Glennon, an issue arose regarding whether, given pre-trial publicity, a juror may have knowledge of previous convictions for a similar offence. The High Court held:^[11]

The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.

26. [26]
    The fact of the defendant’s incarceration may give rise to prejudice. Here both the complainant and the defendant were in custody at the time of the alleged offence and therefore presumably will be equally prejudiced by the jury’s knowledge of that fact. This information cannot be withheld from the jury because the Correctional Centre is the location of the alleged offence. No speculation is required regarding whether the jury will become aware of this information.
27. [27]
    The more important concern is that the knowledge of the incarceration may cause the jury to wonder why he was in custody. This could lead to the jury speculating as to whether it was for a similar offence to the charge before it. Although it has been said that the law proceeds on the footing that a jury will act on the evidence before it and follow directions, it is difficult to see what directions could be given in this matter which would ameliorate any risk. 
28. [28]
    Examples of matters where it has been found that the interest of justice is best served by a judge only trial, or staying or delaying a trial include:

    1. R v Clough [2008] QSC 307 – Mackenzie J ordered that the accused be tried by a judge sitting without a jury in circumstances where the effect of certain evidence may have had an impact on the availability of the defence of insanity or diminished responsibility.
    2. R v BCM [2014] QSC 321 – a judge only trial was ordered on the basis that giving evidence before a jury would have been difficult for the applicant because of his youth and special vulnerabilities.
    3. where there has been pre-trial publicity which may lead to prejudice.^[12]

29. [29]
    Examples of matters where it a judge only trial has been refused include:

    1. R v WC [2016] QDC 241 – Smith DCJA (as he then was) refused an application for a no jury order in circumstances where there was prejudicial evidence against the defendant. Smith DCJA noted the very nature of the allegations against the defendant (namely of sexual charges concerning a child under 16 years). In that case, the evidence of alleged sexual offending commencing when the complainant was very young is at least relevant to whether she consented to sexual intercourse after she was 16. That is, even if the evidence was prejudicial, it was necessarily admissible. Smith DCJC did not consider that case to be one where it would be impossible for the jury to ignore the evidence having been directed to do so.
    2. In R v Holliday [2014] ACTSC 384 – Master Mossop determined an application as to whether pre-trial publicity would result in the accused not receiving a fair trial. Master Mossop noted (relying on Glennon):

3. [31]
   Even where a juror does have knowledge of some extraneous but prejudicial fact, such as a previous conviction, that does not mean that there has been or will be an unfair trial or a miscarriage of justice.

30. [30]
    The present case does not seem to be one of particular or unusual complexity or length. The trial will involve an assessment of the credibility and/or the reliability of the Crown witnesses and of the evidence which they give – typical issues for a jury to consider.
31. [31]
    It is agreed that the present case will not involve the application of objective community standards.^[13]
32. [32]
    The fact of a prior conviction on its own does not necessarily mean there would be a miscarriage of justice. Although in Glennon, Mason CJ and Toohey J said:^[14]

Knowledge of an admissible prior conviction for a similar offence stands in a different position from other prejudicial information. Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law (18) Maxwell v. The Director of Public Prosecutions (1935) AC 309, at p 317. And the wrongful 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 (19) Reg. v. George (1987) 9 NSWLR 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.

33. [33]
    In the circumstances of this matter I am satisfied there is a real and tangible risk that a jury may unfairly assess the evidence. The potential prejudice identified is akin to the concerns that arise regarding the admissibility of evidence of having committed a similar offence leading to a consideration that the accused is likely to have committed this offence as well. In Pfennig v The Queen [1995] HCA 7; 182 CLR 461 the issue was whether evidence disclosing the commission of another similar offence was admissible. Clearly this evidence was prejudicial, but it was admitted on the grounds that in the circumstances of the case it was probative. The High Court noted:^[15]

…as a matter of policy, the courts have taken the view that propensity evidence if it does no more is likely to have a very prejudicial effect and should not be received unless its probative force exceeds that prejudicial effect. So the evidence of propensity needs to have a specific connection with the commission of the offence charged, a connection which may arise from the evidence giving significant cogency to the prosecution case or some aspect or aspects of it. 

34. [34]
    Here, the evidence of the defendant being in protective custody at the time of the offence and the real likelihood of this giving rise to an inference that his custody was for a similar offence, would, in my view have a very prejudicial effect. It was not submitted that this information was in any way probative of the matters requiring determination at trial.
35. [35]
    Another example of this tendency to prejudice from the admission of propensity evidence can be seen in R v F [1993] QCA 305. In that matter, the accused was charged with raping his 12-year-old daughter. A copy of a police interview was played to a jury. Part of that interview referred to his prior convictions. He had previous convictions of attempted rape, one charge of rape, one charge of incest and one charge of dealing with a girl under the age of fourteen years. That part of the interview was not intended to be played jury. Despite counsel for the appellant applying for the discharge of the jury on the basis that they had heard evidence they should not have heard, the jury was not discharged. The jury found the defendant guilty. He appealed, arguing that he had been unfairly prejudiced because of that material being before the jury. The Court of Appeal held the accused did not have a fair trial. They said:

We have listened to the tape and consider that the critical section is both audible and materially adverse to the appellant.  It was not available, and should not have been used, for the purpose suggested by the prosecutor or any other purpose.  Further, it is impossible to decide whether it had any, and if so what, impact on the jury.  It quite possibly caused it to think of the appellant as a man who had previously been convicted and sentenced to imprisonment, perhaps in conjunction with offences against his step-daughter.

In these circumstances, the trial judge's discretion miscarried and the appellant has not had a fair trial, see R v. Knape [1965] VR 469, 472-474; R v. Waring (No.2) [1972] Qd.R. 263, 269-271.

The appeal against conviction is therefore allowed, the conviction and sentence set aside and a new trial ordered.

36. [36]
    The High Court’s decision in Fisher v Hebburn [1961] HCA 16; 105 CLR 177 (Fisher) highlights the potential risks that may occur if the matter had proceeded by way of a jury trial, as opposed to judge alone trial, in circumstances where inadmissible prejudicial evidence is before the court. In Fisher, the appellant applied to the High Court for leave to appeal against his conviction in the Supreme Court of the Territory of Papua and New Guinea on a charge that he "advisedly spoke and published seditious words" under section 52 of the Criminal Code which had been adopted as law in the Territory of New Guinea. One ground of appeal was that certain witness evidence was inadmissible. In this matter the trial had proceeded without a jury. Objection to that evidence was made at the outset by defence counsel, but the trial judge determined he would rule on the matter later. The result was that the evidence was for practical purposes admitted into evidence. The High Court found the evidence was “irrelevant and inadmissible. Not only ought it never to have been entertained: it ought never to have been tendered”. The High Court went on to say (at 183):

…there are few things more objectionable in a criminal case than the introduction of matter which has no probative value in relation to any issue, but is calculated to create prejudice in the mind of the tribunal.

37. [37]
    Here, there is no suggestion whatsoever that the Crown is seeking to introduce evidence with no probative value. It is simply a matter whereby, through no fault of any party, that evidence will be before the jury.
38. [38]
    The High Court in Fisher noted that if that inadmissible evidence had been before a jury, the conviction would have been quashed and that even if the jury had been directed to disregard it, “it would have been impossible to be sure that their minds had not been decisively affected by it”.
39. [39]
    That is not to say prejudicial evidence is permissible before a judge only trial, but a judge alone would render a judgment with reasons. That is, it will be known if a judge has relied on any prejudicial or inadmissible evidence. The prospect of the misuse of prejudicial evidence is reduced in a judge only trial.^[16]
40. [40]
    In Fisher, the High Court was able to review the decision by the trial judge which demonstrated that, despite the admissibility of the evidence, there had been no misuse of that material in relation to the fundamental question in the case.
41. [41]
    The additional and practical impact of the potential prejudice here is that if the trial is conducted before a jury, the accused may be curtailed, forensically disadvantaged, in that he may decide not to cross-examine on certain matters in an attempt to ensure prejudicial evidence is not before a jury.^[17]
42. [42]
    I am satisfied there is a real tangible risk of unfair prejudice and misuse of information concerning the “why” of the defendant’s custody.
43. [43]
    Could the potential prejudice arising from knowledge of the applicant’s incarceration be adequately dealt with by appropriate directions to the jury? This issue was considered by the Chief Justice in R v Burley [2022] QCA 251. The defendant was found guilty by a jury of sexual assault and rape. One of the grounds of appeal against the conviction was that the trial judge failed to warn the jury about the appellant’s status in custody. A direction had been given to the jury that:^[18]

You heard evidence that the defendant has been in custody. That is irrelevant. It would be unfair to speculate about it, and you must not use that in any way. And I direct you that you should put that entirely out of your minds.” [underlining added]

44. [44]
    The Chief Justice found ([31]) the jury “may well have inferred the defendant was in custody for similar offending. The fact of being in custody was not the limit of the potential prejudice. There was the potential for (impermissible) reasoning that the appellant may also be a sex offender, and therefore may be more likely to have committed the offences against the complainant.”
45. [45]
    As would be the case here, the jury in Burley did not know why the accused was already in custody.
46. [46]
    The Chief Justice (at [33]-[34]) commented that this information had the potential to interfere with the jury’s consideration of the evidence and that in her view “a direction which went a step further was called for”.
47. [47]
    I was not given any suggestion as to what further direction could be given to a jury in this matter in addition to directing a jury not to speculate to reduce any risk of unfair prejudice.
48. [48]
    As Muir JA observed in Fardon, section 615 provides a useful mechanism under which the risk identified by the defendant can be cured. Precautionary measures can be taken now to avoid any anticipated complications arising at trial.

44. Conclusion

49. [49]
    In the circumstances the applicant be tried by a judge sitting without a jury.
50. [50]
    I make the following order:

Pursuant to section 615 of the Criminal Code, I order that the trial of Mr David Gordan Denis proceed by way of judge alone.