R v Black (a pseudonym)[2021] QDCPR 65

DISTRICT COURT OF QUEENSLAND

This is an application pursuant to section 615 of the Criminal Code 1899 for an order that the trial of this defendant proceed before a judge sitting without a jury.  The defendant is charged that, on 11 September 2018, he unlawfully did grievous bodily harm to a 17-month-old child.  The matter commenced on 22 October 2018 in the Magistrates Court at Richlands.  The indictment was presented in the District Court on 17 June 2019 and the matter was originally listed for a trial in 2020.  That trial was abandoned due to the commencement of the COVID-19 pandemic last year and was relisted for a trial in March 2021.  That trial commenced before a jury, but the jury was discharged on day two of the trial for reasons that are not now relevant.  So the matter was then listed for trial before a jury to commence today, 2 August 2021.  

On Saturday 31 July 2021, the Chief Health Officer for the State of Queensland issued a health directive effectively, in common parlance, locking down Brisbane and other areas of south-east Queensland from 4 pm that day for a period of three days.  That does not mean that a trial before a jury could not commence, save that it has since been announced by the courts that no jury trials will proceed during the lockdown.  

Instead of the trial proceeding this morning, therefore, the defendant brought this application.  The defendant is keen for the matter to proceed, given that it arises out of events that occurred nearly three years ago and the matter has already been listed for a trial on two previous occasions.  In some very helpful submissions provided to me in writing by counsel for the defendant, Ms Juhasz has set out the law and referred to relevant cases.  Of course, this is a situation in which the trial judge is known and, therefore, not only must it be in the interests of justice that an order for a trial without a jury take place, but there must be special reasons for making that order, that is under section 614(3).  

Ms Juhasz directed me to the decision of Justice Burns in R v Pentland [2020] QSC 78.  Most relevantly, his Honour said, at paragraph 18:

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.  

At paragraph 19, his Honour went on:

Cases like this one 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.

Paragraph 20:

Here, the accused not only consented, he brought the application.  There is 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.

His Honour also went on to conclude that there were special reasons for making the order.  Apart from the age and state of health of the defendant in that case, his Honour noted that if the application were dismissed it would have been almost inevitable that his trial would be delisted.  He would be left in a state of uncertainty regarding the final disposition of the charge against him and those features amounted to special reasons.  

In this case, the trial would have to be delisted completely if the matter were not to proceed without a jury and this is in circumstances where the matter has previously had two listings for trial and one has commenced and had to be abandoned.  In those circumstances, it seems clear to me that, not only is it in the interests of justice that this trial proceed before a judge without a jury, but the special circumstances, particularly the recent lockdown of the south-east Queensland area - which has, this morning, been extended until Sunday, 8 August and therefore would extend for the whole of this week.  In those circumstances, one would not know when the trial would proceed, but it’s likely to be in many months’ time.  

In those circumstances, I consider there to be special circumstances that merit an order being made.  I will therefore order that the defendant be tried in this matter by a judge sitting without a jury.  I will also order that the trial remain listed to commence before me on 2 August 2021.

______________________