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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Pentland  QSC 78
NEIL ANDREW PENTLAND
Indictment No 532 of 2019
Supreme Court of Queensland
1 April 2020
1 April 2020
27 April 2020
The orders of the court pursuant to s 615 of the Criminal Code 1899 (Qld) are that:
CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERALLY – where the accused is charged on indictment with murder – where the trial was listed to proceed before a judge and jury on a future date – where the identity of the trial judge is known – where jury trials were subsequently suspended because of the COVID-19 pandemic – where the accused made application for a no jury order pursuant to s 614 of the Criminal Code 1899 (Qld) – whether it is in the interests of justice that a no jury order be made – whether there are special reasons for making a no jury order
Commonwealth of Australia Constitution Act 1901 (Cth), s 80
Criminal Code 1899 (Qld), s 24, s 119B, s 590AA, s 614, s 615, s 615A, s 615D
Criminal Practice Rules 1999 (Qld), r 7, r 42A
Youth Justice Act 1992 (Qld), Part 6
Arthurs v State of Western Australia  WASC 182, cited
Coates v Western Australia  WASCA 142, cited
R v BCM  QSC 321, cited
R v Belghar  NSWCA 86, cited
R v Chardon  QDC 59, cited
R v Chardon  QSCPR 17, cited
R v Clough  1 Qd R 197, cited
R v Coman  QSC 60, cited
R v Fardon  QCA 317, cited
R v Hanna & McAllum  QDCPR 50, followed
R v Kissier  1 Qd R 353, followed
R v Madden  QDC 340, cited
R v McNeil  NSWSC 357, referred
R v Patel  QSC 419, discussed
R v Perry (1993) 29 NSWLR 589, cited
R v Prisk & Harris  QSC 315, followed
R v Sica  QSC 261, cited
R v Sica  2 Qd R 168, followed
R v WHA  QDC 338, cited
S Holt SC and B Dighton for the applicant
D Meredith for the respondent
Gilshenan & Luton Legal Practice for the applicant
Office of the Director of Public Prosecutions (Qld) for the respondent
- The applicant, Neil Andrew Pentland, is charged on indictment with one count of murder.
- On 12 March 2020, his trial was listed to commence before Martin J and a jury on 20 July 2020 for an estimated duration of five weeks.
- Four days later, as a precautionary measure in response to the emerging COVID-19 pandemic, all trials requiring a jury in the Supreme and District Courts in Queensland were suspended for the immediate future. Subsequently, all criminal jury trials that had been listed for the first half of this year were de-listed. Although this trial remains listed, as things currently stand, it must be accepted to be almost certain that jury trials will not resume before the date listed for its commencement. Indeed, the fact of the matter is that no-one can presently say when jury trials will resume.
- On 31 March 2020, the applicant filed an application for a direction or ruling pursuant to s 590AA of the Code. In it, a no jury order pursuant to s 614 was sought. I heard the application on the following day. The Crown did not oppose the making of a no jury order although it was not necessarily accepted that the trial can proceed on 20 July; that will depend on a number of logistical considerations that will become clearer closer to that time. At the conclusion of submissions on the application, I ordered that the applicant be tried by a judge sitting alone without a jury and, further, that it remain listed to commence before Martin J on 20 July 2020. In accordance with Practice Direction No 6 of 2013, it will be a matter for his Honour as the judge with management of the case to determine in due course whether it can proceed at that time.
- These are my reasons for making a no jury order.
The discretion to order a trial by judge alone
- Sections 614 and 615 form part of Chapter Division 9A of Part 8 of the Code. They are in these terms:
“614 Application for order
- (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.
- (2)The application must be made under section 590AA before the trial begins.
- (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.
- (4)Subsection (3) does not limit section 615 or any other restriction on making a no jury order imposed by this chapter division.
- (5)The court may inform itself in any way it considers appropriate in relation to the application.
- (6)For subsection (2), the trial begins when the jury panel attends before the court.
615 Making a no jury order
- (1)The court may make a no jury order if it considers it is in the interests of justice to do so.
- (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.
- (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.
- (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—
- (a)the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;
- (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;
- (c)there has been significant pre-trial publicity that may affect jury deliberations.
- (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.” [Emphasis in original]
- For completeness I mention that, by s 615A of the Code, if an accused is charged with two or more charges that are to be tried together, the court must not make a no jury order in relation to one of the charges unless the court also makes a no jury order in relation to each other charge. Also by the same provision, if two or more accused persons are to be tried together, the court must not make a no jury order in relation to one of the persons unless the court also makes a no jury order in relation to each other person. In any such case, each accused must consent to the making of the no jury order.
- Chapter 9 of the Criminal Practice Rules 1999 (Qld) is also relevant. It applies if the Crown presents an indictment before a court against a person and a party to that proceeding seeks a direction or ruling about the conduct of the trial under s 590AA of the Code. Rule 42 provides that such a party must apply to the court for the direction or ruling, and then specifies what the application must contain, who must be served and by when. Rule 42A (inserted in 2009) provides as follows:
“42A Affidavit to accompany application for no jury order
- (1)If the application is for a no jury order under the Code, section 614, the party must file an affidavit with the application.
- (2)The affidavit must—
- state the grounds on which the application is made; and
- state whether the party knows the identity of the trial judge and, if so, state the grounds on which the party considers that there are special reasons for making a no jury order; and
Example of grounds—
The identity of the trial judge is known to the parties well in advance of the trial because the trial is to be held at a place outside Brisbane and it is public knowledge that a particular judge will be sitting at the place.
- (c)if the party is the accused person and is not represented by a lawyer—state that the party understands the nature of the application, including the effect of a no jury order; and
- (d)if the accused person is to be tried with 1 or more other accused persons—
- identify each other accused person with whom the accused person is to be tried and, if known, state whether each other accused person consents to the making of a no jury order; and
- exhibit a copy of any consent of another accused person to the making of a no jury order.
- (3)When serving a copy of the application under rule 42(3) or (4), the party must also serve a copy of the affidavit.”
- Since Chapter Division 9A of Part 8 of the Code was inserted in the Code in 2008, its provisions have come to the attention of the Court of Appeal on three occasions – in R v Fardon, R v Kissier and R v Sica – and been considered and applied in a number of single judge decisions of this court – R v Prisk & Harris, R v Clough, R v Patel, R v BCM and R v Chardon – as well as several decisions of judges of the District Court. Although some of what has been written about the operation of the provisions in these decisions was obiter dicta (including all that was said by Muir and Chesterman JJA in Fardon), when regard is had to the plain meaning of ss 614 and 615 and r 42A along with what has been held regarding their operation, several propositions may be seen to emerge. They are these:
- (a)Application for a no jury order may be made after the accused has been committed for trial (or charged on indictment) but before the trial begins: ss 614(1) and 614(2). The trial begins when the jury panel attends before the court: s 614(6);
- (b)If the Crown applies for a no jury order, the court may only make such an order if the accused consents: s 615(2). In contradistinction, the consent of the Crown is not required before the court may make a no jury order on the application of the accused. In either case, if the accused is not represented by a lawyer, the court must be satisfied that he or she properly understands the nature of the application before making such an order: s 615(3);
- (c)The court may make a no jury order if it considers it is “in the interests of justice” to do so: s 615(1). That is the overriding consideration, and the discretion is unfettered. That said, whether it is in the interests of justice that the trial proceed before a judge alone must be considered in the setting of the particular case under consideration. The expression is concerned with the “imperative requirement of a fair trial” and otherwise comprehends “the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice”;
- (d)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. Similarly, any notion that the community will more readily accept the validity of one mode of trial over the other should not be allowed to affect the exercise of the discretion; there is “no reason to think, and no basis in law for concluding, that one mode of trial is more ‘socially acceptable’ than the other”;
- (e)Without limiting the breadth of the discretion conferred by s 615(1), the court may make a no jury order if it considers that the trial, because of its complexity or length or both, is likely to be “unreasonably burdensome to a jury” or there is a real possibility that acts that may constitute an offence under s 119B of the Code (retaliation against, or intimidation of, a juror) would be committed in relation to a member of the jury or there has been significant pre-trial publicity that “may affect jury deliberations”: s 615(4);
- (f)Again without limiting the breadth of the discretion, 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: s 615(5). Such cases will necessarily be those calling for the tribunal of fact to determine “on which ‘side of the line between acceptable and unacceptable conduct’ the facts proved against an accused fall”. The rationale would appear to be that the Legislature “regards it as potentially important for juries to assess such [community] standards rather than individual judges”. However, the likely presence of such an issue at trial could not, without more, compel a refusal of the application; much will depend on the nature and extent of that issue in the context of the case as a whole as well as the weight of other factors (for or against) the making of an order in the particular case under consideration;
- (g)It is obvious that it would not be in the interests of justice for a no jury order to be made if, by proceeding in that mode, the trial process will (in the particular circumstances of the case) be so compromised that a fair trial according to law (to both parties) could no longer be secured;
- (h)The onus is on the applicant for a no jury order to persuade the court that it is in the interests of justice that that be the mode of trial;
- (i)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 that there are “special reasons” for making it – s 614(3) – although that requirement does not of itself limit the discretion: s 614(4). It is thought that this additional requirement was included to discourage the temptation, if there be one, to “judge-shop”. The need for a demonstration of special reasons must be construed in light of its context and must not be confined by precise limits or rules, although “circumstances which are routine and consequences that are a normal or inevitable result of those circumstances are unlikely to give rise to special reasons”. There must be “some factor over and above the interests of justice”, but that does not mean the case must be “extremely unusual, uncommon or exceptional”;
- (j)The question of whether there are special reasons will not usually arise unless the court is otherwise minded to make a no jury order. Ordinarily, it would be necessary to first consider whether there are grounds which justify a no jury order and then, if there are, to consider whether there are special reasons for making such an order, however it is possible that the grounds and the reasons might overlap. In that event, it might not be possible to consider these matters separately;
- (k)Again, the onus is on the applicant for a no jury order to make out the existence of special reasons for it;
- (l)The court may inform itself in any way it considers appropriate in relation to the application: s 614(5);
- (m)A supporting affidavit must be filed with the application – r 42A(1) – and then served on the respondent: r 42A(3). The affidavit must state the grounds on which the application is made, specify whether the applicant knows the identity of the trial judge (and, if so, state the grounds on which the applicant considers that there are special reasons for making a no jury order) and, if the application is made by an unrepresented accused, state that he or she understands the nature of the application, including the effect of a no jury order: r 42A(2). Non-compliance with these rules does not invalidate the proceeding unless the court directs otherwise: r 7;
- (n)The provisions do not apply to a trial on indictment before a Childrens Court Judge (see Part 6 of the Youth Justice Act 1992 (Qld)) or to a trial on indictment of any offence against the law of the Commonwealth (see s 80 of the Commonwealth of Australia Constitution Act 1901 (Cth)): 615D.
- To the above propositions, I would add the following three observations.
- First, there has been some debate throughout the decisions regarding whether there is a “starting assumption” to the effect that there should be a trial by jury in the absence of a no jury order based on a finding that it is in the interests of justice to do so, or whether the court should regard the provisions as expressing a “neutral position” as to the preferred mode of trial. To my mind, the discretion falls to be exercised without any preconceptions as to the mode of trial; either it is in the interests of justice that the case proceeds without a jury or it is not. Of course, it is indisputable that, absent an order, the “default position” under our system of criminal justice is trial by jury, but that should not be permitted to skew the exercise of the discretion one way or the other. It follows that if the applicant satisfies the court that it is in the interests of justice that the case proceed without a jury (and, where the identity of the trial judge is known, that there are special reasons for facilitating that), a no jury order should be made.
- Second, as his Honour Judge Rafter SC held in Hanna & McAllum, just because the trial will require an assessment of the credibility of one or more witnesses does not mean that trial by jury is the preferable mode. Very few trials will not involve such an issue and the assessment of the truthfulness and reliability of witnesses is a basic function of a trial judge in relation to which he or she will not be under any relevant disadvantage compared with the jury. To the contrary, a “trial judge has considerable advantages over a jury as a result of his or her training and experience”.
- Third, I do not necessarily subscribe to the view expressed in a couple of the cases that it is better for the application to be determined by someone other than the trial judge (if known) and the avoidance of listing the trial before a judge if he or she has determined the application. In consequence of active case management of the criminal lists in both courts, the identity of the trial judge will often be known at the time when the application is decided, and that will almost always be the case in the regions. If that is the position, s 614(3) requires the demonstration of special reasons before a no jury order can be made. Indeed, the example provided with r 42A makes it clear that one of the grounds on which special reasons may be established is that the trial is in one of the regions where “it is public knowledge that a particular judge will be sitting at the place”. But that does not mean that such a judge must abstain from hearing the application or even that it is preferable that he or she does so. That said, where a no jury order is sought because of the existence of significant pre-trial publicity that might affect the jury deliberations (s 615(4)(c)), it might be considered prudent for the application to be determined by another judge and, in that way, avoid any perception if a no jury order is made that the trial judge has in some way been influenced by any of that material. But where, as here, an order is sought on a different ground or, at least, a ground the consideration of which does not carry with it a risk of any such perception, I can see no reason why the trial judge has to be different to the judge who decided the application.
The Crown case
- The parties are agreed that, for the purposes of this application, the Crown case may be briefly summarised as follows.
- The indictment charges the accused with the murder of his business partner, a Mr Carlyle. He was found dead on the evening of Sunday, 13 April 1997 in the Gold Coast office complex in which they worked. The accused had been in the office with Mr Carlyle until approximately 11.00 am that day. Mr Carlyle was later found to have been shot, with four bullets discovered in and around his body. Investigators subsequently identified the bullets as .32 calibre Norma ammunition.
- The Crown case is wholly circumstantial and, by it, the Crown seeks to gather together a number of strands of evidence to establish motive and opportunity on the part of the accused. There is also a body of expert opinion evidence which attempts to link the accused to the ammunition that was used. Separately, the Crown case reveals that Mr Carlyle was the subject of numerous threats related to his business and personal activities, including during periods well before he knew the accused. The depositions are voluminous with, potentially at least, a large number of witnesses to be called.
- Otherwise, the case is listed for a two-day application pursuant to s 590AA of the Code commencing on 29 April. By that application, the defence seek the exclusion of two categories of evidence regarding the ammunition used to kill Mr Carlyle as well as an email which is alleged by the Crown to have been sent by the accused to Mr Carlyle from the Qantas Lounge of the Sydney domestic airport terminal.
Should a no jury order be made?
- 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.
Are there special reasons?
- Although the identity of the trial judge was known at the time when the application was decided, there were special reasons for making the order.
- The accused was first interviewed by police in relation to the matter 23 years ago (April 1997) but was not charged until 27 June 2017. The indictment was presented in April last year. He is now 71 years old and, although he was admitted to bail, he was diagnosed in 2018 with a serious illness, described as “Advanced HIV”. If his application for a no jury order was dismissed, it would have been almost inevitable that his trial would be de-listed and, if that was to occur, he would be left in a state of uncertainty (to say the least) regarding the final disposition of the charge against him. These features, taken together, amount to special reasons over and above the interests of justice.
  QCA 317.
  1 Qd R 353.
  2 Qd R 168 and, at first instance, R v Sica  QSC 261 (de Jersey CJ).
  QSC 315 (Martin J).
  1 Qd R 197 (Mackenzie J).
  QSC 419 (Douglas J).
  QSC 321 (Ann Lyons J).
  QSCPR 17.
 See, for example, R v WHA  QDC 338 (Chief Judge O’Brien), R v Chardon  QDC 59 (Chief Judge O’Brien); R v Madden  QDC 340 (Long SC DCJ) and R v Hanna & McAllum  QDCPR 50 (Rafter SC DCJ).
 Fardon, ; Kissier, ; BCM, ; Chardon, .
 Clough, ; Sica (de Jersey CJ), ; Sica (CA), .
 Fardon, .
 Prisk & Harris, .
 Ibid. And see Fardon, ; Patel, .
 R v Belghar  NSWCA 86, ; Clough, ; Fardon, ; BCM, ;
 Fardon, .
 Such as whether, within the meaning of s 24 of the Code, the accused acted under an honest and reasonable, but mistaken, belief as to the existence of any state of things: Fardon, .
 For example, where it is necessary for the tribunal of fact to determine whether particular conduct amounts to criminal negligence, that is to say, conduct involving such a serious departure from reasonable standards as to amount to a crime against the State and thereby deserving of a criminal sanction in the form of punishment: Patel, .
 Such as in R v Coman  QSC 60. The accused was charged on indictment with manslaughter and, in the alternative, dangerous operation of a motor vehicle causing death. Orders were made for a judge alone trial.
 Fardon, .
 Patel, .
 Fardon, ; Sica (de Jersey CJ), ; Kissier, ; Patel, –.
 Clough, . And see R v Perry (1993) 29 NSWLR 589, 594 (Gleeson CJ); Hanna & McAllum, .
 Prisk & Harris, .
 Ibid. And see Patel, .
 Ibid, .
 Clough, ; Fardon, –; Kissier, .
 Arthurs v State of Western Australia  WASC 182, .
 Kissier, ; Sica (CA), ; Chardon (Boddice J), .
 At .
 Per Buss JA (Martin CJ agreeing) in Coates v Western Australia  WASCA 142, . For an opposing view, see R v McNeil  NSWSC 357,  (Johnson J) and the authorities to which his Honour referred.
 Arthurs, ; Clough, .