R v Aaron Colin East
[2020] QDCPR 73
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- Unreported Judgment
- R v Aaron Colin East[2020] QDCPR 73
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R v Aaron Colin East[2020] QDCPR 73
R v Aaron Colin East[2020] QDCPR 73
DISTRICT COURT OF QUEENSLAND
CITATION: | R v Aaron Colin East & Anor [2020] QDCPR 73 |
PARTIES: | THE QUEEN (respondent) v AARON COLIN EAST (first applicant) and THERESA FAYE MERLEHAN (second applicant) |
FILE NO/S: | 3886 of 2018(2) |
DIVISION: | Criminal |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland at Brisbane |
DELIVERED ON: | 25 June 2020, ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 June 2020 |
JUDGE: | Loury QC DCJ |
ORDER: | Application for no jury order is granted. |
CATCHWORDS: | CRIMINAL LAW – APPLICATION – NO JURY ORDER – IDENTITY OF TRIAL JUDGE KNOWN – SPECIAL REASONS – where jury trials have been suspended due to concerns regarding the COVID-19 public health crisis – where jury trials have returned, albeit in limited numbers and in strict compliance with advised social-distancing measures – where the applicants make application for a no jury order pursuant to section 614 of the Criminal Code Act – where the identity of the trial judge was known at the time of application – whether there are “special reasons” for making a no jury order Criminal Code Act 1899 ss 614, 615A The Queen v Terare [2020] QDCPR 14 R v Pentland [2020] QSC 78 R v Prisk and Harris [2009] QSC 315 |
COUNSEL: | GJ Cummings and MA Gawrych for the respondent MJ McCarthy for the first applicant DJ Whitmore for the second applicant |
SOLICITORS: | Office of the Director of Public Prosecutions (Qld) for the respondent Fisher Dore Lawyers for the first applicant Grant Lawyers for the second applicant |
Application pursuant to section 614
- [1]Aaron East and Theresa Merlehan make application for a no jury order. The application has been adjourned on a number of occasions and was heard by me this morning. I am the trial judge listed in this matter and have had carriage over a number of mentions arising out of or in relation to the proceedings. This application was listed by me on 15 May 2020 for 8 June 2020. It was de-listed by His Honour Judge Smith on 4 June 2020 and re-listed for 12 June 2020. The application was adjourned again until 19 June 2020. On that date His Honour Judge Devereaux SC adjourned the application to 19 June 2020. I adjourned the application to today’s date. The remaining two defendants on the indictment have now entered pleas of guilty. None of the parties object to my hearing the application knowing that I am the trial judge. The Crown does not oppose the application for a no jury order.
- [2]There are two applicants party to this application; Ms Theresa Merlehan and Mr Aaron East. Each of the them is charged with one count of fraud in excess of $30,000. Their trial was listed to commence before a jury as the number 1 trial in the sittings commencing 13 July 2020. It was given that listing at a mention on 14 November 2019 before His Honour Chief Judge O'Brien, the indictment having been presented on 21 June 2018 at Southport. On 16 March 2020 it was announced that in response to the developing public health crisis posed by the COVID-19 pandemic all new jury trials in Queensland would be suspended for the immediate future. As of 22 June 2020, jury trials have returned, albeit at a very limited rate and in strict accordance with recommended social-distancing measures.
- [3]It remains the case that any complex trials, or otherwise, trials with large time estimates, remain unlisted before a jury. The Crown Prosecutor has estimated that it will take two and half months for presentation of the Crown case alone. Given that length, it is the case that a trial before a jury cannot be accommodated at this time and the matter would need to be delisted. There is considerable uncertainty as to when a jury trial for such a lengthy trial can be accommodated.
- [4]The applicants, Ms Merlehan and Mr East, are the remaining co-accused in this matter. Each applicant has filed an application seeking an order pursuant to section 614 of the Criminal Code Act 1899 that they be tried by a judge sitting without a jury. An application and outline of submissions on behalf of Theresa Merlehan was filed on 12 June 2020, along with supporting affidavit material affirmed under the hand of Jason Grant, and an application and outline of submissions on behalf of Aaron East was filed on 22 May 2020, along with supporting affidavit material affirmed under the hand of Hamish Farr. I have read this material. Counsel for each of the applicants and the Crown Prosecutor have not made any further oral submissions and rely upon the material filed.
- [5]It is my intention to deal with these applications together, as I am compelled to do so pursuant to section 615A(2) of the Criminal Code Act 1899. This section applies, where there are multiple accused, to the effect that a Court must not make a no jury order in relation to one of the accused unless the Court makes a no jury order in relation to each of the other accused. Accordingly, any order I make in relation to the grant or dismissal of a no jury order will apply for both applications.
Background
- [6]By way of background, the prosecution allege that the two applicants, together with six others, induced persons to buy software though making false representations about the financial returns to be realised from using particular computer software. The software that was most commonly sold was based on the stock trading concept of arbitrage, which involves the purchase and sale of assets with a view to profit from a difference in the assets’ price between markets. Collectively, the co-accused are alleged to have acted this way within an organisation of their own design. Each is alleged to have had established roles within the said organisation.
- [7]The other six persons have either entered pleas of guilty, been sentenced or a nolle prosequi has been entered by the Crown.
Issues at trial
- [8]The live issues at trial have been identified as involving both a question of whether, and if so, which sales of the software were dishonest, and, subsequently, a determination of the role and level of knowledge of each of the accused.
“Special Reasons”
- [9]Consideration of knowledge of the identity of the trial judge is relevant to the grant of a no jury order. My identity as the listed trial judge has been known to each of the parties for some time, as well as at the time of the filing of their respective applications. As such, it will be necessary in deciding whether to grant the application that the Court is satisfied that not only is it in the interests of justice to grant the application but that the applicants have demonstrated that there are “special reasons” for making it.[1]
- [10]Whilst there is ordinarily a requirement to establish that it is in the “interests of justice” to grant an application for a no jury order – an element for which has been readily satisfied by the impacts of the COVID-19 pandemic in recent cases such as The Queen v Terare [2020] QDCPR 14[2]and R v Pentland [2020] QSC 78[3] – it is more crucial to determine whether “special reasons” are established in this case.
- [11]What constitutes “special reasons” was reviewed by His Honour Justice Martin in R v Prisk and Harris [2009] QSC 315. His Honour summarised what is meant by “special reasons” as follows:
“[9] While the phrase was used in different circumstances in the legislation considered in the above cases, there can still be drawn from them a number of principles of general application. They are:
- (a)The expression must always be construed in the light of its context.
- (b)The application of the expression is not to be confined by precise limits or rules.
- (c)Circumstances which are routine and consequences that are a normal or inevitable result of those circumstances are unlikely to give rise to special reasons.
- (d)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.
- (e)But, that does not mean that the case must be extremely unusual, uncommon or exception.” (References omitted)
- [12]It is not controversial that the time estimate for this trial is significant. This is an estimate that is considerably larger than most trials which have recently received no jury orders, and/or have in turn been tried by a Judge sitting alone without a jury. It is fair to say the majority of no jury orders granted in recent months have arisen as a response to the impacts of the COVID-19 public health crisis on the administration of criminal justice. Regardless, with jury trials returning in both limited numbers and short time estimates, it remains the case that a trial of this size will not likely be in a position to proceed with an empanelled jury for several weeks, if not months, at the earliest. There remains, of course, a backlog of jury trials which have been adjourned from March through June which will need to be accommodated in the court calendar.
- [13]Overall, despite government timeframes for the estimated gradual lifting of restrictions, it is unclear both the impact such restrictions will continue to have on the running of trials, and the impact the subsequent backlog of trials that such restrictions have caused will have.
- [14]Further, given there has been a lapse of over two years since presentation of the indictment, it is clear there is a need to ensure the trial undergoes no further unnecessary delay. It has been now been 4 years and 9 months since Ms Merlehan and likely Mr East were charged.
- [15]Whilst I appreciate the threshold for a matter constituting “special reasons” is higher than a matter falling within the “interests of justice”, it is important to reinforce the relevance of granting no jury orders and in what circumstances they are appropriately made. Such commentary is provided by Burns J in R v Pentland [2020] QSC 78. His Honour remarks at [18]:
“…it is difficult to image 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 decision 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 for 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.”
- [16]The application filed on behalf of Mr Aaron East rests on the issue of delay; arising from what is a prevailing view of the judiciary that a suspension of jury trials does not only provide compelling grounds but, rather, constitutes special reasons for the making of a no jury order. The material filed on behalf of Ms Theresa Merlehan echoes a similar sentiment and ultimately refers to the same authority; authority which I have also drawn attention to.
- [17]Both applicants submit that the impact of the COVID-19 public health crisis on the ability for each of Mr East and Ms Merlehan to have their trial, justify both that it is in the interests of justice and that there are special reasons for making a no jury order. I agree.
- [18]The application is allowed, I will make the no jury order.