R v Paton[2020] QDCPR 65

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for a no jury order, pursuant to section 614 of the Criminal Code.  The applicant is charged with one count of robbery with personal violence.  The offence is alleged to have been committed in September 2019.  The applicant currently has no trial listing.  Consequently, the identity of the trial judge is not known.  The applicant, therefore, does not need to satisfy the court that there are special reasons for making the order before it can be made.  The applicant must, however, establish that it is in the interests of justice for the court to make the order.  

2. [2]
   In R v Phillott,^[1] for reasons I explained therein including the adoption of what had been said by Burns J in R v Pentland,^[2] I expressed the view that earlier cases which had considered the application of sections 614 and 615 of the Criminal Code in circumstances in which trial by jury was not suspended, 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.  I adhere to that view.  
3. [3]
   The circumstances concerning jury trials in Queensland have altered somewhat since I made those observations, but only to the extent that it has been announced that there will be a trial jury trial conducted in Brisbane later in June 2020, with a view to resuming some jury trials subsequent to that.  It may be anticipated that jury trials may recommence in Ipswich in July 2020.  However, as social distancing will have to be observed, the courthouse facilities are such that only one jury trial will be able to be conducted at any one time.  
4. [4]
   Trials by judge alone will, however, be able to proceed in parallel.  Inevitably, given the number of trials which have been delisted and the limited capacity for jury trials in the foreseeable future, there will be significant delays in facilitating a defendant’s trial by jury.  There are many trials which will need to be accorded priority, such as those where the defendant is remanded in custody and those which have previously not been reached in earlier sittings, even before the pandemic. For those defendants whose cases do not command priority, the delays may be substantial.  

5. [5]
   This particular case is not one which has any features or circumstances which would see it prioritised.  The defendant is, however, desirous of having his trial, even if that means foregoing a trial by his peers.  
6. [6]
   In my view, those matters favour a finding that making a no-jury order would be in the interests of justice in this case.  
7. [7]
   Beyond those matters, though, the respondent Crown, although neither supporting nor opposing the application, identifies a number of further matters which the court may consider support the making of the order.  Of those matters, helpfully set out in Mr Wallis’ outline of submissions at paragraph [29], one in particular is, in my view, particularly favourable to making the order.  The Crown identifies that admissible evidence proves the theft of the property and that such evidence may be used improperly by a jury to reason in a prejudicial impermissible way.  That is, the jury may, impermissibly, reason that because the defendant was willing to steal it is likely that he would resort to violence to do so.  
8. [8]
   In the ordinary course of things where jury trials remained the day-to-day way in which criminal trials are heard, such matters would be addressed by directions and warnings to the jury.  However, in the current circumstances, where many trials are proceeding by judge alone, all prospect of such prejudicial misuse of evidence can be removed.  I am satisfied the making of a no-jury order is in the interests of justice.  
9. [9]
   The application is allowed. I will make the no-jury order.