R v Phillott[2020] QDCPR 63

DISTRICT COURT OF QUEENSLAND

COUNSEL: Mr J Thomas for the applicant

Mr C Wallis for the respondent

SOLICITORS: Hans Legal for the applicant

Office of the Director of Public Prosecutions for the respondent

1. [1]
   This was an application for a no-jury order that was heard by me on 5 May 2020. The applicant’s trial on one count of doing a malicious act with intent had been listed for trial before a jury as the number 6 trial on sittings commencing on 18 May 2020. It was given that listing at a mention on 25 February 2020, the indictment having been presented on 23 January 2020. On 16 March 2020 it was announced that in response to the evolving health crisis posed by COVID-19, as a precautionary measure, all new jury trials in Queensland would be suspended for the immediate future. Jury trials remain suspended.
2. [2]
   On 7 April 2020, the applicant filed an application pursuant to section 590AA of the Criminal Code seeking an order pursuant to section 614 of the Criminal Code that he be tried by a judge sitting without a jury. At the time the application was made, the identity of the trial judge was known. However, on 1 May 2020 all trials listed in the Ipswich District Court, which were to proceed before a jury for the month of May, were delisted. Thus, by the time the application came to be heard and, more importantly, given the wording of section 614(3), decided, the identity of the trial judge was and is not known.
3. [3]
   In those circumstances, the Court does not have to be satisfied that there are special reasons for making the order. The applicant must satisfy the Court that it is in the interests of justice to make the order. The applicant’s application rests on the issue of delay, but not just delay per se, delay in the context of the suspension of jury trials for the immediate future and the indefinite nature of such suspension. The applicant is in custody. He has been in custody since his arrest on 4 September 2019. That is a relevant consideration. Any delay in his coming to trial, at least in the absence of a grant of bail, will be spent on remand in prison.
4. [4]
   Apart from the usual curtailment of freedoms, which status as a remand prisoner brings, any persons currently accommodated in any prison facility in Queensland are, because of precautionary measures taken by authorities to manage the risks associated with COVID-19 in these particularly vulnerable institutions, more restricted than what is ordinarily the case. All such facilities are currently operating at stage 3 of a four-stage plan to prevent and manage potential spread of COVID-19.
5. [5]
   Under stage 3 restrictions, access for all visitors is withdrawn. This includes nongovernment services and legal representatives unless approved by the chief executive, with only essential Queensland Corrective Services and Queensland Health staff required to ensure the safe and secure operations of the prison permitted to enter. Additional resources are being dedicated to support connectedness of inmates to family through telephone and video conferencing. However, it may be accepted that incarceration at the present time is at least somewhat more onerous than is ordinarily the case.
6. [6]
   The respondent Crown describes its position on this application as one of neutrality, having placed before the Court submissions as to matters which the Court would take into account in exercising its discretion. The Court is grateful for those submissions. The respondent submits that, traditionally, delay has not been a consideration in applications for no-jury orders, but does so acknowledging that certain circumstances may well be considered differently in the current situation.
7. [7]
   In R v Terare,^[1] his Honour Judge Smith, the Judge Administrator, found that the interests of justice would be served by the making of a no-jury order, which would ensure that the trial in that matter could go ahead without delay. His Honour was of the view that the COVID-19 pandemic and its accompanying risks to public health were crucial factors, and the suspension of jury trials was a very relevant factor. There were, however, other matters which also favoured a no-jury order being made which were personal to the applicant in that case, and against which any delay also needed to be judged. He was a 70 year old indigenous man with what were described as significant health issues. He was a man who his Honour considered should have an early trial.
8. [8]
   R v Pentland^[2] was another case which considered an application for a no-jury order, in light of the current suspension of jury trials in Queensland. Burns J, helpfully, distilled a number of propositions which emerged from decisions of the Court of Appeal, the trial division of the Supreme Court and the District Court on the operation and application of sections 614 and 615 of the Criminal Code. To those his Honour added three observations of his own. Turning his mind to consider the particular application before him, his Honour, at paragraphs [18] to [20], said:

“As stated at the outset, when the no-jury order was made in this case (1 April), jury trials had been suspended for the immediate future, and that, of course, remains the position to this day. Given that circumstance, the Crown rightly did not oppose the making of the order. Indeed, it is difficult to imagine a more compelling ground for concluding that it is in the interests of justice that a no-jury order be made than that trial by jury is not presently available as a mode of trial.

As such, cases like this one are fundamentally different to most, if not all, previous decisions on applications for no-jury orders. That is because they do not ask in terms whether a fair trial according to law may be secured before a jury. They confront the reality that no trial by jury can presently be had. If the only mode of trial is by judge alone, and the fairness of the trial is not otherwise compromised, the only way in which the interests of the parties, as well as the public interest in the due administration of justice can be advanced is through a trial without a jury provided, of course, the accused consents.

Here the accused not only consented, he brought the application. There was otherwise no reason to think that a fair trial could not be secured before a judge alone, as opposed to a trial before a judge and jury. It was in the interests of justice that a no-jury order be made.”

9. [9]
   I respectfully adopt his Honour’s observations. To my mind, earlier cases which considered the application of sections 614 and 615, in circumstances in which trial by jury was not suspended and was the day-to-day way in which defendants charged on indictment would be tried, beyond providing general statements as to the breadth of the meaning of the expression “in the interests of justice”, can offer little by way of direct guidance as to how those provisions ought be applied in the present circumstances.
10. [10]
    By way of example, Chesterman J’s observation in R v Fardon,^[3] that the Criminal Code provides that, ordinarily, indictable offences are to be tried by a jury, and that trial on indictment before a judge without a jury is exceptional must now be read in that light. Criminal trials by a judge alone are not in the current circumstances exceptional, at least not to the full extent of that expression as then contemplated by his Honour.
11. [11]
    Broader expressions of the notion of the interests of justice can readily be applied in the current context. For example, Martin J’s observation in R v Prisk and Harris,^[4] that the phrase “the interests of justice” is not susceptible at 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, can readily be applied to the present circumstances. The inherent flexibility of the expression “in the interests of justice” can accommodate what are far from normal circumstances; the suspension of jury trials for an indefinite period.
12. [12]
    As Burns J observed in Pentland, a trial by judge alone, provided it does not compromise the fairness of the trial, may be the only means by which the public interest in the administration of justice may be advanced. In my view, the desire of a defendant to be brought to trial sooner rather than later made manifest in an application for a no-jury order by the defendant is also a relevant consideration. One of the propositions distilled by Burns J in Pentland from the cases which considered sections 614 and 615, at paragraph 9(d) of his Honour’s reasons, was:

“The fact that the accused desires a trial by judge alone, though relevant, is not as significant as the reasons for that desire and whether those reasons, either alone or in combination with other factors, make it in the interests of justice that a trial occur by judge alone.”

13. [13]
    His Honour cited a number of cases in support of that proposition. A consideration of those cases suggests that the subjective view of the defendant to which they refer was not so much a desire as a view as to whether he could have obtained a fair trial before a jury. For example, in Fardon at paragraph [88] Chesterman JA referred to an accused’s subjective opinion that a trial before a jury might not be fair. His Honour cited what Martin CJ had said in the Supreme Court of Western Australia in Arthurs v State of Western Australia,^[5] but stated his preference for the different view expressed by McKechnie J in the same Court in TVM v Western Australia.^[6] In the former, Martin CJ had said:

“As I have already observed, it seems to me to be of some significance that the commission referred to the subjective view of an accused person as to whether or not he or she would receive a fair trial from the jury. It is, I think, entirely consistent with the interests of justice for weight to be given to the subjective views of an accused person, provided, of course, that they are not fanciful or irrational. Thus, in my opinion, an apprehension by an accused person, which is not fanciful or irrational, that he or she may not get a fair trial by jury because, for example, of pre-trial publicity or because of their ethnic, religious, cultural or other peculiar circumstances, may be entitled to significant weight.

Therefore, in some cases the fact that an accused person has made an application for trial without jury, and has an apprehension which is not fanciful or irrational that his or her trial by a jury may be prejudiced by any circumstance may of itself be sufficient to produce the conclusion that it is in the interests of justice for the application to be granted if there are no countervailing considerations in favour of trial by jury.”

14. [14]
    In the latter case, preferred by Chesterman JA, McKechnie J had said:

“To pay undue account to the subjective views of an accused person, as suggested in Arthurs at [79] and [80], may have the result that a decision is really being made for the interests of an accused, not the interests of justice.”

15. [15]
    Immediately preceding that passage, McKechnie J had observed:

“One thing is clear. The interests of justice are not coterminous with the interests of an accused.”

16. [16]
    His Honour cited the Full Court of the Supreme Court of Victoria in R v Cox,^[7] where it was said:

“The judge, in exercising his discretion, is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice, which may well be a very different matter.”

17. [17]
    Cox was a case in which the application, which had been refused, was one for the adjournment of a trial by a co-accused who had not engaged a lawyer, the application being made on the morning of trial. The desire of a defendant to forgo a trial by a jury of his peers at some unknown and indeterminate time in the future and to be tried by a judge is, in my view, something different to a defendant’s subjective view as to his prospects for a fair trial, as discussed in some of the earlier cases.
18. [18]
    Indeed, in the sense considered in R v Cox, as referred to by McKechnie J in TVM v Western Australia, the interests of justice and the accused, in the current circumstances of suspension of jury trials, may be, or at least are more likely to be, coterminous, particularly so if the defendant awaits his trial in jail for that indeterminate period of time.
19. [19]
    Of course, the subjective desire of the defendant cannot overwhelm other relevant considerations. They cannot be elevated to the point that a no-jury order is simply there for the asking. It is, though, a relevant consideration in the determination of what is in the interests of justice.
20. [20]
    In Brown v R,^[8] Deane J rejected the notion that the absolute requirement under section 80 of the Constitution, that trial for any Commonwealth offence charged on indictment must be by jury, might be displaced “if a particular accused thinks he might do better before a judge alone.” Equally, that would not be a proper basis upon which to bring an application for a no jury order. However, an application such as this, made in the current circumstances, is not a case of that kind.
21. [21]
    The applicant readily concedes that questions of reasonableness may need to be considered in the trial. That is one of the community standards, the requirement for the application of which may lead the Court to refuse a no-jury order.^[9] It does not, however, require refusal. On the little of what is known, I do not consider the prospect of the need to apply the community standard of reasonableness should preclude the making of an order in this case, when other considerations demonstrate that in the interests of justice it is an appropriate exercise of the discretion.
22. [22]
    The application is allowed, I will make the no-jury order.