BNC v R[2017] QDCPR 22

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   The applicant is charged on indictment before the District Court at Ipswich with a total of six offences as follows:

Count 1:  Maintaining a sexual relationship with a child with circumstances of aggravation (between 31 March 1992 and 31 December 1994);

Counts 2, 3:  Indecent treatment of a child under 12 years who was a lineal descendant, as a guardian (on a date unknown between 31 March 1992 and 1 June 1992);

Counts 4-6:  Rape (on unknown dates between 1 January 1993 and 31 December 1994).

No trial date has been allocated and the identity of the trial judge is, as yet, unknown.

2. [2]
   The applicant seeks a no jury order in relation to the trial or, alternatively, an order that the evidence of the complainant, AS, be excluded from evidence at the trial.

3. [3]
   Because I have reached the view that a no jury order should be made, it is unnecessary to consider the application to exclude the evidence of AS.

Prosecution case

4. [4]
   It is alleged all the charged offences were committed upon the complainant who is the applicant’s daughter. It is alleged the complainant was aged between seven and nine years when the offences occurred. It is alleged all offences occurred when the complainant lived with the applicant, her mother LS and younger sister KK at an address at Mount Tarampa.
5. [5]
   Count 1, the charge of maintaining a sexual relationship, is said to be evidenced by the allegations reflected in counts 2 – 6, as well as other unparticularised allegations. The allegations particularised as counts 2 and 3 are alleged as the first occasion the applicant involved his daughters AS and KK in a game in which he instructed them each to urinate in his mouth. For count 2 it is alleged the applicant exposed AS to an indecent act by KK, namely KK straddling the applicant’s face and attempting to urinate in his mouth. For count 3 it is alleged the applicant procured AS to commit an indecent act, namely AS straddling the applicant’s face and attempting to urinate in his mouth. Counts 4, 5, and 6 allege separate occasions the applicant had sexual intercourse with AS when she was aged eight years. Unparticularised allegations include other times the applicant had either AS alone, or AS and KK together, take part in “chasey” games and urinate in his mouth whilst they were naked, and having AS masturbate him.

6. [6]
   AS first complained of these events in March 2014. She provided a statement to police dated 21 May 2014. In that statement AS describes that in March 2014 she watched a television news broadcast in which the verdict in the Daniel Morcombe murder case was announced. AS says that she then had a “vivid memory” of herself aged seven years, being sexually abused by her father. She recalled having to rub her father’s penis until he ejaculated, and also her father having sexual intercourse with her. She says these memories caused an anxiety attack and she later told her mother and sister of what she now remembered. In the statement, she details the offences charged as counts 2-6 and describes the other uncharged acts.

7. [7]
   KK provided a statement to police dated 1 June 2014. In that statement, KK says on 16 March 2014, she received a phone call from her mother asking her to go to her mother’s residence. She did so and there spoke with her mother and sister AS. She says AS told her “I remember things have happened to me. Dad has molested and raped me as well.”  KK says her sister then described their father making them urinate in his mouth and on multiple occasions stroke his penis. KK says she told her sister she remembered those things. KK says AS then said the applicant had, when KK was not present, made her stroke him and raped her. KK says AS said it happened regularly over a period of two years between ages seven and nine. KK says AS asked her “I’m thinking of going to the Police. Will you help me, cause you were there?” and KK replied “Yeah. I’ll help you with anything that you need.”  KK goes on in the police statement to describe what she says is her memory of her father asking her and AS to urinate in his mouth and both attempting to do so. She says she cannot recall any other instances of molestation by her father when AS was present.

8. [8]
   LS provided a statement to police dated 1 June 2014. She says she married the applicant in 1988 and they separated in about 1998. She says the applicant is the father of her two daughters, AS and KK. She says AS was born on 26 February 1985 and KK was born on 13 May 1988. In the statement, LS details AS’s complaint to her on 16 March 2014. LS says AS told her in effect the applicant molested and raped her when she was young. LS says she asked AS why she had not told her before and AS replied she felt scared. LS says AS told her KK was present on some occasions. LS says AS also said the applicant asked both she and KK to urinate in his mouth, had raped AS on at least three occasions, had also made her masturbate him, and that these things occurred when she was aged about seven or eight years old. LS says she called KK who came to her residence. LS says she told KK of AS’s complaint and KK said she recalled those events.

Earlier application

9. [9]
   This is the second pre-trial application by the applicant. The first application concerned admissibility of so called similar fact evidence and also application for a no jury order.^[1]

10. [10]
    At that time, her Honour Judge Richards heard argument concerning the admissibility, on the trial of the present charges, of evidence of prior sexual offences committed by the applicant against his daughter KK. The prosecution sought to lead that evidence as similar facts. Her Honour ruled that evidence was not admissible. The relevant material shows the applicant was charged with sexual offences committed upon KK when she was aged between five and seven years. The applicant was sentenced for a total of six offences; these involved his touching the vagina of KK (three offences of indecent dealing), having her masturbate him (two offences of indecent dealing), and one occasion where he inserted his penis into her vagina (one offence of incest). The applicant pleaded guilty to those offences on 15 October 2001 and was sentenced to a term of imprisonment. Of significance for present purposes is that the applicant was not then charged with any offence which reflected the occasion of the first two counts on the indictment relating to AS. The facts placed before the court, and which formed the basis of the sentence imposed in 2001, did not include any allegation that the offending occurred in the presence of AS or otherwise involved her. No allegation that the applicant engaged either AS or KK to urinate in his mouth was made.

11. [11]
    The basis of the first application for a no jury order was described by Judge Richards.^[2] When the offending against KK was uncovered, the complainant AS was asked by police, and also her mother, whether the applicant had done anything to her. She denied that he had. For the applicant, it was then argued that to establish before the jury that AS had specifically been asked of this in 2000, and failed to disclose any offending, it was necessary to also disclose to the jury KK’s complaint. Thus, it was argued, the interests of justice necessitated a no jury order be made to avoid the prejudice that would accrue to the applicant in properly presenting his defence.

12. [12]
    Her Honour concluded that it was not necessary for the applicant to disclose the complaint of KK, in order to prove the failure of AS to disclose the offences when questioned in 2000. In her Honour’s view, whether that was done was a tactical decision to be made by counsel. Her Honour said:

In this case, in my view, the defence could easily ask whether she was spoken to by Police about another matter in 2000 and whether her mother has ever asked her previously about abuse by the accused without revealing specifically that (KK) had made a complaint. It merely requires delicate cross-examination which again is regrettably not unusual in cases such as this.^[3]

13. [13]
    At the time of the application before her Honour, the trial was listed to commence before Judge Koppenol on 6 October 2015. As her Honour recognised, the fact the identity of the trial judge was known required that “special reason” be shown for the application for a no jury order to succeed. Her Honour concluded, listing a number of single judge decisions she had been referred to, that no special reason for making the order had been demonstrated.^[4]

Applicant’s submissions

14. [14]
    The applicant now submits there has been a material change of circumstance since the time of the earlier application for a no jury order, such that re-opening of the earlier ruling is justified pursuant to s 590AA(3) of the Criminal Code. The trial did not proceed before Judge Koppenol in 2015; it is accepted by both parties that this was not as a result of any tactical ploy by the applicant. It is argued that at the time of the earlier application, a higher threshold was necessary for a no jury order to be made; that is, special reason had to be shown in addition to the requirement that making the order was in the interests of justice (s 614(3) of the Code). Now, since the identity of the trial judge is not known, it is submitted that the lower test under s 615(1) of the Code, which provides that a no jury order may be made if in the interests of justice to do so, applies. The applicant also argues that the ruling of Judge Richards unfairly constrains the presentation of the defence case because in order to effectively attack the credit of the complainant and her sister, the defence will have to introduce highly prejudicial evidence; namely prior sexual offending by the applicant. It is submitted that the correctness of her Honour’s ruling, or at least consideration of the effect of it, is relevant in determining that special reason now exists to re-open that ruling.

15. [15]
    Two aspects are relied upon as demonstrating that making a no jury order is in the interests of justice. First is the need to demonstrate that when asked in 2000 by police and her mother whether the applicant had indecently touched her, AS replied that he had not. Secondly, the defence wish to establish that KK made no claim in 2000 that her father procured her and/or AS to urinate in his mouth. It is argued these matters are relevant to the credit of both AS and KK. It is submitted that presentation of the defence case will be unfairly constrained if the defence do not also show that the denials by AS were made in circumstances where she was then aware of her sister’s allegations. Similarly, it is argued, establishing that KK did not make her present allegations in 2000 is of little significance unless understood in the context of her then complaints about the applicant.

16. [16]
    However, it is submitted raising the fact of KK’s 2000 complaints will introduce significant prejudice to the applicant by reason of the nature of the earlier offending, such that a jury cannot reasonably be expected to be able to ignore it. It is this feature, infringing upon the applicant’s right to a fair trial, which is said to result in a no jury order being in the interests of justice. Additionally, it is submitted the alternative course of conducting the defence case without reference to KK’s earlier complaint also results in unfair prejudice to the defendant. It is submitted in those circumstances the jury will inevitably be curious as to why, in 2000, each of AS and KK were asked whether the defendant had indecently touched them. It is submitted this speculation effectively hints at some other undefined sexual offending and introduces the same prejudice which cannot be cured.

Respondent’s submissions

17. [17]
    The respondent opposes re-opening the earlier ruling and the making of a no jury order. In essence, the respondent submits that nothing has changed since the time of the earlier ruling which would demonstrate special reason to re-open it. The respondent concedes that the test applied by Judge Richards was one that was more onerous by reason of the identity of the trial judge then being known. However, the respondent argues that Judge Richards was aware of all relevant facts and is not said to have applied the wrong test or made some error of principle which might show the exercise of discretion miscarried. It is submitted that mere disagreement with her Honour’s ruling is insufficient to amount to special reason.

18. [18]
    As regards the application for a no jury order, the respondent submits that presentation of the defence case will not be unfairly constrained before a jury. It is submitted the defence can adequately seek to undermine the credit of both AS and KK by establishing prior inconsistency, without reference to the earlier offending. However, the respondent argues, it remains open for the defence to introduce the evidence of the prior offences if they wish to do so. The respondent submits that in those circumstances, specific directions by the trial judge can protect against potential prejudice. The respondent maintains that trial by judge alone is exceptional and nothing raised in the submissions of the applicant indicates the interests of justice require departure from the norm. The respondent submits the trial should proceed before a jury.

Relevant legislation and principles

19. [19]
    Relevantly, sections 590AA, 614 and 615 of the Code provide:

590AA Pre-trial directions and rulings

1. (1)
   If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial or any pre-trial hearing.

2. (2)
   Without limiting subsection (1) a direction or ruling may be given in relation to –

…

2. (da)
   an application for trial by a judge sitting without a jury;

…

3. (3)
   A direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing, for special reason, gives leave to reopen the direction or ruling.

…

614 Application for order

1. (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. (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.

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

…

615 Making a no jury order

1. (1)
   The court may make a no jury order if it considers it is in the interests of justice to do so.

…

4. (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 –

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

…

5. (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.

1. (i)
   Application to re-open pre-trial ruling

20. [20]
    The Queensland Court of Appeal has, a number of times, considered applications to re-open a pre-trial ruling pursuant to s 590AA(3) (or its equivalent). In R v Steindl,^[5] a judge’s pre-trial ruling effectively ended the prosecution case and a nolle prosequi was then entered with a view to the prosecution referring the question to the Court of Appeal pursuant to s 669A(2) of the Code. No such reference was brought and the prosecution presented a new indictment before another judge who heard the same argument but ruled contrary to the original decision. With respect to the question of re-opening the earlier ruling, McMurdo P said:

A reopening of a pre-trial hearing should not be lightly undertaken. It is obviously undesirable that there be two conflicting decisions on a matter of law from different judges of the same court. Substantial disagreement with the earlier ruling may not always justify its re-opening. For example, if a party applies for a re-opening of a pre-trial hearing solely or primarily for the purpose of judge-shopping, such an application should ordinarily be refused and, if appropriate in all the circumstances, the proceedings stayed as an abuse of process. There was no reason here to compel a conclusion that the prosecution was forum-shopping. The unusual circumstances of this case which involved the interpretation of an uncertain, important and novel point of law did allow (but not, of course, require) the judge to re-open this pre-trial hearing. His Honour cannot be said to have erred in the discretionary exercise involved.^[6]

In the same case Thomas JA said:

The procedure in the present case was unfortunate and open to interpretation as forum shopping. One District Court judge does not have appellate power over another, and in the ordinary case the fact that a second judge disagrees with the opinion of another on a point of law would not be sufficient reason for re-opening the s 592A ruling. However, I am not prepared to say that this can never be done. The decision of the second judge in this matter can be upheld in the special circumstances of the original ruling having been given in circumstances where the Crown had no access to the court under s 669A(2), where the appellant had been granted a certificate under the Appeal Costs Fund Act, and where the original ruling was arguably incorrect. A “special reason” is necessary before a pre-trial ruling under s 592A may be re-opened. In the circumstances I am not prepared to hold that the second District Court judge erred in proceeding to re-open the original ruling.^[7] (Citation removed.)

21. [21]
    In R v Sheehy,^[8] the court accepted that a pre-trial ruling continued to apply at the re-trial which followed upon the jury’s failure to agree upon a verdict.^[9] Williams JA said the earlier ruling required the trial judges to admit the evidence objected to “… unless and until there was cogent evidence raising a real question as to the continuing correctness of that decision.”^[10]

22. [22]
    In R v Vaughan; ex parte Attorney-General (Qld),^[11] the court upheld the subsequent ruling holding certain evidence inadmissible. Jerrard JA (de Jersey CJ and Helman J agreeing), explained the reason the re-opening was appropriate:

Because in this matter the first judge applied a test subsequently declared inappropriate by the High Court, there was a special reason for reconsidering the ruling that SM’s evidence was admissible and should not be excluded. A High Court decision overturning the case law forming the basis of an earlier pre-trial ruling or direction – or legislation subsequently enacted and declared to be retrospective – provides a special reason for a judge, whether the same judge or a different judge, to give leave to re-open that direction or ruling. To do otherwise would simply risk unjustified and expensive perpetuation of an error, as the Director readily recognised in withdrawing the first two questions.^[12]

23. [23]
    In R v Dunning; ex parte Attorney-General (Qld),^[13] the court also confirmed the subsequent ruling. This case involved a re-trial where the jury had been unable to agree. The trial judge, upon application, reversed his earlier ruling in light of the evidence given on the first trial. Williams JA (McMurdo P and Fryberg J agreeing), said:

… the judge presiding at the re-trial would be obliged if an application to reopen was made to consider the continuing correctness of the pre-trial ruling in the light of what transpired at the first trial. It would be contrary to all notions of justice and fairness to say that a pre-trial ruling remained binding even though in the light of circumstances which emerged during the first trial doubts were raised as to the correctness of the ruling. Where, after the first trial, either the prosecution or defence sought to have a pre-trial ruling re-opened, a judge would have to give consideration to whether or not the change in circumstances warranted a re-opening. If the change in circumstances warranted a re-opening then "special reason" would exist for so doing. If a consideration of the evidence at the first trial did not disclose any reasonable basis for re-considering the ruling (as happened in Sheehy) there would be no "special reason" warranting the re-opening and the application would be refused on that basis. Adopting that approach does not conflict with anything said in R v Nguyen [2002] 1 Qd R 426; R v Steindl [2002] 2 Qd R 542 or Sheehy as to what constitutes "special reason". It is not desirable for there to be any attempt to further define what in a particular case may constitute "special reason". That is something which will have to be determined in the circumstances of each case in which the question arises.^[14] (Emphasis added)

Later, his Honour concluded:

… As already indicated, what constitutes "special reason" cannot be precisely and exclusively defined. It will be for the judge in each particular case to consider all of the relevant circumstances and determine whether or not "special reason" has been established justifying reopening the ruling. Frequently, perhaps more often than not, a material change to any factor relevant to the exercise of the discretion will amount to "special reason" for reopening the ruling; but I am not prepared to say that as a matter of law every material change to a factor relevant to the exercise of discretion must constitute "special reason". A material change in the law, particularly where that law impacts upon the basis for the original ruling, would almost certainly constitute "special reason" for reopening; but again I am reluctant to conclude that as a matter of law such a material change will always, without more, constitute "special reason". It is even more debateable whether a "finding of material error in the original decision" will as a matter of law always constitute "special reason". As the President said in Steindl at 554: "Substantial disagreement with the earlier ruling may not always justify its reopening."…^[15]

24. [24]
    In R v Simmons,^[16] the judge hearing an application under s 590AA(3), reversed an earlier ruling excluding certain evidence in circumstances where the earlier ruling exposed difficulties with and limitations upon the conduct of the case.^[17] Gotterson JA (Morrison JA and Douglas J agreeing) quoted with approval from the judgment of Williams JA in Dunning.^[18] His Honour concluded the earlier ruling was shown to be incorrect and re-opening was therefore justified.^[19]

2. (ii)
   Application for a no jury order

25. [25]
    In R v Kissier,^[20] the court (per Mullins J, Fraser and White JJA agreeing) rejected the argument that the fact of the appellant’s making application for trial by judge alone justified making the order.^[21]

26. [26]
    In R v Clough,^[22] Mackenzie J made a no jury order in circumstances where the issues involved complex psychiatric evidence and opinion. His Honour summarised the considerations as follows:

The exercise of the discretion to make a no jury order in the interests of justice has to be considered in the setting of the particular case. In my view the subjective views of an accused person are but one factor to be considered, and are not decisive. In some cases those views will coincide with matters which would be of concern to the court, for example, the effect of sustained and negative publicity concerning the applicant’s case on the ability to conduct a fair trial. In other cases, it may be of little weight, because it does not raise issues that are, objectively, likely to require a trial by Judge alone in the interests of justice. … ^[23]

Later, his Honour said:

In the result, because of the difficulties about the conduct of the trial in the short term, the application was adjourned on the return date and at the next criminal review the trial was de-listed. No formal listing has, as I understand it, yet been made for its hearing in the new year. The identity of the trial Judge will not be known at the time when the application is “decided”, on the assumption that the word bears its ordinary meaning. When the hearing of this application resumed it was submitted that the need to show special circumstances had dissolved because of that.

That, in my view, is correct. At the time the application is decided, the identity of the trial judge is not known. The circumstances of the present case are such that there were genuine reasons for the listing of the trial being vacated. …^[24]

27. [27]
    In R v Prisk and Harris,^[25] after review of authority, Martin J considered what is meant by the phrase “interests of justice”. He concluded:

The phrase “interests of justice” is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial. I agree with the description of Malcolm CJ in Mickelberg that the interests of justice comprehend: the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.^[26]

Consideration

28. [28]
    The first question is whether special reason exists to re-open the ruling of her Honour Judge Richards. That the trial is not now listed for hearing and the identity of the trial judge is unknown is relied upon as a change of circumstance sufficient to justify re-opening. The prosecution accepted that in those circumstances a lesser threshold applied for making a no jury order. That position seems consistent with statements by Mackenzie J in Clough and Martin J in Prisk and Harris.

29. [29]
    I accept that mere disagreement with the opinion of her Honour alone would not be a sufficient basis to re-open her Honour’s ruling. However, the passages quoted from the judgments of both McMurdo P and Thomas JA in Steindl do not rule out re-opening; in that case the re-opening was held to be justified. What is required is special reason to do so.

30. [30]
    In Vaughan, Jerrard JA regarded that a change of authority or legislation was sufficient to amount to special reason. In Dunning, Williams JA held the making of an application to re-open required consideration of the correctness of the earlier decision. His Honour concluded that more often than not, a material change to a factor relevant to the exercise of discretion will amount to special reason. In Simmons, the demonstrated difficulty and constraint that the earlier ruling caused in conducting the trial justified re-opening.

31. [31]
    Judge Richards referred to the possibility of limiting cross-examination of AS to avoid reference to KK’s complaints but did not refer to cross-examination of KK also being limited. Failure to recognise that the same issue also applies to KK’s evidence has the effect of underestimating the degree to which the defence might be constrained in conducting their case and the unfairness that flows to the applicant. This seems to me to amount to an error. It is possible for cross-examination of KK also to be limited to exclude reference to her earlier complaint. This course however, would cause distinct prejudice to the applicant.

32. [32]
    Firstly, presentation of the defence case without exposing the earlier offending significantly reduces the impact of the inconsistency in the accounts of both AS and KK. It seems to me the failure of disclosure by both is far more devastating to their credit when established in proper context; i.e. in circumstances where AS knew of KK’s complaints against the applicant, and where KK made complaints about other conduct by the applicant but did not make these allegations. The failure by AS to complain may well be dismissed as a not unusual occurrence if viewed without proper context. Similarly, KK’s failure to disclose these offences is likely to be regarded by the jury as inconsequential unless they know of the complaints she did make. Secondly, leaving the evidence of their denials without context is itself suggestive that some reason existed as to why both were specifically asked about the applicant’s behaviour. Leaving the evidence in that state is likely to invite speculation by the jury as to why the applicant was so suspected.

33. [33]
    If, on the other hand, the defence elect to introduce the context in which the inconsistencies of AS and KK are to be assessed, the jury will hear evidence of prior allegations of sexual offences committed by the applicant upon his daughter; that is, precisely the same type of conduct now alleged by AS. That evidence is, consistent with the ruling of her Honour Judge Richards, not relevant in proof of any of AS’s allegations. The decision of the High Court in De Jesus v The Queen^[27] recognises the prejudice arising to a defendant where inadmissible sexual allegations are made “against which a direction to the jury is unlikely to guard.”^[28]

34. [34]
    Judge Richards applied a test which is now no longer applicable and which was more onerous. That seems to me to amount to a material change of circumstance. In addition, I find myself in substantial disagreement with her Honour as to the fairness of the applicant’s trial. In my view, the conduct of the case would be substantially and unfairly constrained by limiting the context of the evidence of AS and KK, yet still productive of prejudice. Alternatively, placing the evidence of AS and KK in context is productive of real prejudice which cannot be cured by direction. In consequence of these conclusions, I find that special reason is shown to re-open the ruling of her Honour Judge Richards. For the reasons explained above, I am satisfied that the fair trial of the applicant will be significantly compromised before a jury. I therefore find it is in the interests of justice that a no jury order be made.

Orders

35. [35]
    The orders of the court are:

1. The ruling of Judge Richards of 18 September 2015 is re-opened.
2. A no jury order is made.