R v JW[2020] QDCPR 99

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defendant for a no jury order pursuant to s 614 of the Criminal Code 1899 (Qld).

Charges

2. [2]
   The defendant is charged with one count of assault occasioning bodily harm on his biological child GW and three counts of common assault in relation to the mother of the child DP.

Crown case

3. [3]
   The complainant child was about two months old at the time of the alleged offences. It is alleged that on 14 November 2017, DP woke in the early hours of the morning to feed the complainant child. She washed two bottles and put them in the microwave to sterilise them. While the bottles were in the microwave, the complainant child began to cry. DP went into the defendant’s bedroom, woke him up and asked him to attend to the complainant child. When she returned to the kitchen, she continued preparing bottles. DP then heard the defendant call out “would you shut up”. When she looked out from the kitchen into the defendant’s bedroom, she saw the defendant holding the child out in front of him at chest height. The child was crying. The defendant shook the child three or four times violently causing the child’s head to snap backwards. The applicant then threw the child onto his bed. The child stopped crying. DP dropped a bottle she was holding and ran into the defendant’s bedroom and picked up the child. The child was limp, his eyes were wide open and he had turned blue around his mouth/lips. The events described above constitute count 1.
4. [4]
   The defendant told DP that he was sick of waking up early. DP was franticly asking the defendant what she should do. The defendant pushed her in the back causing her to move forward (count 2). DP told the defendant to call ambulance but he refused. DP strapped the child into his pram but the defendant told her she was not taking the child anyway and he walked over to her and punched her in the centre of the back with a closed fist (count 3). DP punched the defendant to his arm before turning her attention back to complainant child in the pram. The defendant punched DP in the back of the head who fell over and hit her head on the wall (count 4).
5. [5]
   Later, the defendant’s father drove DP, the defendant and the complainant child to the Maryborough Hospital. They were directed to go to the Hervey Bay Hospital where the child was examined and jerking movements to the left side of the child’s body were noted.
6. [6]
   After further examination, the complainant child was transferred by helicopter to the Lady Cilento Hospital in Brisbane. While in hospital, the child was observed to suffer a number of seizures. A number of tests were conducted on the child including an ultrasound of his head and EEG which revealed extensive bilateral subdural haemorrhages.
7. [7]
   The Crown case is that the child suffered the following head injuries as a result of the shaking and/or throwing of the child:

2. 1.Bilateral extensive subdural haemorrhages;
3. 2.Subarachnoid haemorrhage;
4. 3.Thrombosed superficial cortical veins out of the top of the head; and
5. 4.Small volume subdural haematoma.

8. [8]
   On 1 October 2018, the defendant attended the Maryborough Police Station and participated in an interview with police in which he denied the offending. He told the police that he and DP were both awake and that DP was preparing the child’s bottle while he changed the child’s nappy. He suggested that DP had thought he had dropped the child which caused her to drop the bottle of milk and scream at him. He said DP was mistaken and he was just playing with the child on the bed soothing him because he had been crying. He said DP had then given the child his bottle at which time the child had been fine but after lying on the bed for a while the child’s eyes rolled back. The defendant denied shaking or hurting the child in any way.
9. [9]
   The Crown rejects the defendant’s contentions in light of the expert evidence of Dr Tork.^[1]

Background

10. [10]
    The defendant was charged on 1 October 2018 - almost two years ago. The defendant was committed for trial on 8 April 2019.
11. [11]
    The indictment was presented on 4 October 2019. Originally, the defendant was charged with grievous bodily harm alternatively assault occasioning bodily harm and three counts of common assault.     
12. [12]
    The matter was listed to proceed as trial number 1 during the sittings of the District Court at Maryborough commencing 16 March 2020. The trial was adjourned because the defendant wanted to obtain his own expert report and also because of the COVID-19 pandemic. The matter was adjourned to the sittings of the District Court commencing week of 21 July 2020. It was not heard then again because of the COVID-19 pandemic.
13. [13]
    The defendant filed an application for a no jury order on 13 May 2020. He also served a copy of an expert report on the Crown on 11 May 2020.
14. [14]
    The next sittings of the District Court at Maryborough is to commence on 16 November 2020 before Judge Reid. I have been informed that there is a trial listed to commence in the first week with a jury. This trial, if it is to commence, would start in the second week but it is not possible to have a jury trial in that week because the Magistrate is sitting in the courthouse and there would be no room for a jury trial due to COVID-19 restrictions.

Defence submissions

15. [15]
    The defence submits that the triable issues in this matter are whether the defendant is responsible for the injuries to the child and there will also be issues surrounding the credibility of the witnesses and a consideration of expert evidence. The defence submits that a no jury order should be made for the following reasons:

    1. (a)
       This trial cannot be conducted before a jury in the second week.
    2. (b)
       There has already been considerable delay with this matter.
    3. (c)
       There is a significant risk of prejudice with a jury trial because of the age of the complainant and the nature of the child’s injuries.
    4. (d)
       There is complex expert evidence to be considered which can more appropriately considered by a judge rather than a jury.

Crown submissions

16. [16]
    The Crown submits that jury trials are not unviable to the defendant despite the COVID-19 pandemic. It is submitted a jury trial could be held next year.
17. [17]
    It is submitted there are no special reasons for the court making the no jury order.
18. [18]
    In supplementary submissions,^[2] it is also submitted that because the charge of grievous bodily harm has been discontinued, and because the Crown is no longer contending that cerebral palsy was caused to the child, there are no particular difficulties with a jury hearing the expert witnesses as the trial is not so complex as to be unreasonably burdensome to a jury.
19. [19]
    As regards to any potential prejudice, this is rejected by the Crown as directions would cure such prejudice and juries are expected to discharge their duties properly.

Law

20. [20]
    Section 614 of the Criminal Code 1899 (Qld) provides: 

1. “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.
4. (2)
   The application must be made under section 590AA before the trial begins.
5. (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.
6. (4)
   Subsection (3) does not limit section 615 or any other restriction on making a no jury order imposed by this chapter division.
7. (5)
   The court may inform itself in any way it considers appropriate in relation to the application.
8. (6)
   For subsection (2), the trial begins when the jury panel attends before the court.”

21. [21]
    And s 615 provides: 

1. “615
   Making a no jury order

3. (1)
   The court may make a no jury order if it considers it is in the interests of justice to do so. 
4. (2)
   However, if the prosecutor applies for the no jury order, the court may only make the no jury order if the accused person consents to it. 
5. (3)
   If the accused person is not represented by a lawyer, the court must be satisfied that the accused person properly understands the nature of the application. 
6. (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; 
2. (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.” 

22. [22]
    As the identity of the trial judge is known to the parties, not only does the defendant have to establish it is in the interest of justice for a no jury order to be made but he also must establish there are special reasons for what the order is to be made.  
23. [23]
    In R v Kissier,¹ it is for the applicant to show why the case comes within the exception that is why it should be a trial without a jury.²  
24. [24]
    Martin J discussed the meaning of the term “special reasons” in R v Prisk and Harris.³ At [9], his Honour said that special reasons are reasons which are out of the ordinary that is distinct or particular about the case. There must be a factor over and above the interests of justice.  
25. [25]
    As to the interests of justice, Martin J noted at [25]:

“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. [26]
    It is relevant that one is concerned with a circuit town and the identity of the trial Judge is known well in advance.^[3]
27. [27]
    “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.”

Disposition

28. [28]
    In this particular case, I consider special reasons have been established by the defence.
29. [29]
    Firstly, is the issue of delay. The fact is that this is effectively the third listing of this trial and the matter must come on. The matter has been before the courts for about two years and the delay is not acceptable.
30. [30]
    The reality is, because of the COVID-19 pandemic, a jury trial cannot be conducted in the second week of the sittings in November 2020.
31. [31]
    It is in the interests of justice that justice be delivered swiftly. This is because it is in the interests of the accused, the complainant, the witnesses and the community that trials be heard without unreasonable delay.
32. [32]
    Secondly, in this matter expert evidence is to be called as to the mechanism and nature of the injuries to the child in this case. The defendant denies shaking the child and expert evidence will need to be called on this question. In my view, a Judge is very well equipped to decide complex medical questions.
33. [33]
    There is finally the issue of prejudice. I do agree with the Crown submissions here that directions can be given to a jury which obviates the question of prejudice. However, such a question still remains and when one throws this issue into the mix, I am ultimately persuaded that special reasons have been established by the defendant.

Conclusion

34. [34]
    For the reasons given I make the following orders:

2. 1.I make a no jury order.
3. 2.The trial is listed to proceed in the week commencing 23 November 2020 in the District Court at Maryborough to commence not before Tuesday 24 November 2020.