R v Lee[2018] QSCPR 12

HIS HONOUR:   The orders or rulings that I make are as follows:

1. That the trial of the applicant on the indictment before the Court be conducted by a Judge sitting without a jury.
2. That the application that the trial of the applicant on count 1 on the indictment be severed from the trial on count 2 be refused.

In what follows are my reasons for the orders and rulings that I have just announced.  When I heard argument on 21 August last, I reserved my decision because it was possible that there might be a development that might bear upon the issues in this application, and also so that I might have the opportunity to consider the competing submissions in a case that has been subjected to a lot of public commentary and interest.

Circumstances, however, have combined to dictate that it is in the interests of justice and in the interest of each of the applicant, the respondent and the community that the application be ruled upon as soon as possible and not wait the preparation of carefully-written elaborate reasons.

In the circumstances, I reserve the right to revise the reasons that I give today, to correct any slips or obvious typographical errors, and also, but without changing the reasons or the reasoning, to more clearly state what I am about to say.

The applicant is charged with two counts on an indictment before the Court.  In count 1, she is charged with the unlawful killing of her child, and, by count 2, she is charged with cruelty to a child under 16 years of age, under section 364 of the Criminal Code.  The child the subject of count 2 is the same as the child whose death is the subject of count 1.

The applicant applies for a pre-trial rulings:  firstly, for a no jury order, pursuant to section 614 of the Criminal Code, and specifically for a trial by a judge sitting without a jury;  and secondly, that counts 1, manslaughter, and count 2, cruelty to the child under 16, on the indictment be severed.  It is relevant that the applicant is jointly charged with the unlawful killing with her then partner, O'Sullivan.

The Prosecution has particularised the charges pending against the applicants specified in the indictment.  With respect to count 1, the charge of unlawful killing or manslaughter, it is alleged that the applicant delivered a blow or blows to the abdomen of the child and as a result of injuries sustained, he died. More particularly that the blow (or blows) to the child was inflicted between 48 hours and five days prior to death and that on or about Monday, 6 June 2016, it is the likely date of the infliction of the injuries.

Alternatively, with respect to count 1, it is alleged that the applicant had a duty to provide the necessaries of life to the child, and a duty to take action that was reasonable in all the circumstances to remove the child from danger.  That the applicant breached those duties by (1) failing to obtain medical treatment for the child, when she knew, or ought to have known, he was sick and/or injured; and/or (2) failing to protect the child from danger by removing him from O'Sullivan’s care, when she knew O'Sullivan to be violent and/or unpredictable.  As a consequence of these breaches of the duty or duties, it is alleged that the child died.

With respect to count 2, it is alleged that the applicant had the lawful care or charge of the child, that she failed to provide the child with adequate medical treatment and/or care, which caused significant physical and/or psychological harm to him as a consequence of perianal injuries.

Subsequent to the hearing of the applicant on 21 August, there has been a significant development.  On 28 August 2018, the alleged co-offender was arraigned on the indictment.  He entered pleas of guilty to counts 1 and 2.  Subsequently, on 30 August 2018, he was sentenced by the Chief Justice.  The basis of the plea of guilty in respect of count 1, was that he inflicted the injuries that caused the death of the infant.

The consequence for the applicant is that, at her trial, the Prosecution will now not allege that she delivered the blow or blows to the abdomen of the child that allegedly caused his death.  The case against the applicant will be on the alternative basis, as particularised – that is, a breach of the duty to the child, under section 286 of the Criminal Code, resulting in the death of the child.

Sections 614 and 615 of the Criminal Code contain provisions that are relevant in the circumstances of the application before me.  Section 614(1) permits, in the circumstance that an accused is committed for an offence or charged on an indictment with an offence, either the Prosecutor or the accused person may apply to the Court for a no jury order and that the accused person be tried by a Judge sitting without a jury.  Section 614(2) provides that the Court may inform itself in any way it considers appropriate, in relation to the application.

Significantly, section 615 provides, by section 615(1), that the Court may make a no jury order, if it considers that it is in the interest of justice to do so.  Relevantly to the application before me and the issues between the applicant and the respondent, section 615(4)(c) is invoked – that is, the discretion in the Court to make a no jury order, if it considers that it is in the interest of justice to do so, where there has been significant pre-trial publicity that may affect jury deliberations.  That is the provision or the circumstance relied upon and urged by the applicant for the order that there be a trial before a Judge, alone.

Before moving onto the evidence and the circumstances of the application, it is important, however, to note section 615(5) of the Code, which provides that, without limiting subsection (1) – that is, the discretionary power to make the order that is considered in the interest of justice – it is provided that 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, issues of what is reasonable and negligence.  The subsection is a little broader than that, or contemplates other circumstances, but I have, in what I have just said, limited it to the circumstances in issue here, as I understand it.

It is section 615(5) and the proposition that it invokes or reminds one of that the respondent relies upon in submitting against the orders sought by the applicant.

I have already indicated that the applicant applies for an order that there be a no jury trial, specifically on the grounds that there has been significant pre-trial publicity, which may affect jury deliberations.  There has been extensive pre-trial publicity and public commentary concerning the death of the infant, and the circumstances that charges have been laid against the applicant, and the person O'Sullivan, to whom I have referred.

That extensive publicity and commentary is referred to, and much of it exhibited to, an affidavit of the solicitor for the applicant, which was filed on 28 June 2018.  The nature and extent of the publicity and public commentary concerning the death of the infant is fairly and accurately summarised in the written outline of submissions, filed on behalf of the applicant.  Circumstances dictate that it would be very lengthy and inconvenient to read from the outline of submissions.  Specifically, I refer to paragraphs 45, 46, 47 and 48, which set out the details of and substance of the publicity.

There is also a further affidavit by the applicant’s solicitor, which was sworn on 20 August and filed on the day of the application, the 21^st of August, which demonstrates that publicity has continued in November 2017, and subsequent to the committal for trial in May 2018, and subsequent to a ruling made by a Judge of this Court concerning a charge against a third defendant.

Before turning to the details or summary of the rival contentions, it is appropriate that I at least acknowledge the factual background to the charges on the indictment and the case sought to be made by the Prosecution against the applicant.  I will not attempt on this occasion to set out even in summary form the facts said to lay the foundation of the Prosecution case.  The factual basis for the case is lengthy, but for the most part, it is accurately summarised in the outline of submissions filed on behalf of the applicant.  From the respondent’s perspective, as I understand it, the summary is in large measure accurate but may not be exhaustive.  Nevertheless, the thrust of the summary is not dispute.  I record that I have in reaching my conclusions have had regard to the facts summarised in the applicant’s outline of submissions but also with regard to the propositions or facts or contentions mentioned in the respondent’s outline of submissions.

In support of the application, I was referred to a number of decisions of Courts in other states and also this state where for various reasons or in various circumstances the Courts have expressed disquiet at the capacity in the particular case of a prospective jury to dispassionately and in an unprejudiced way follow and apply judicial directions.  In particular, I was referred to some observations in Arthurs v The State of Western Australia [2007] WASC 182 at [86] to [88], further, to R v Adams (No 2) [2016] NSWSC 1359 at [12] and further [31] to [39] and particularly to [54] to [58].  To like or similar effect, I was reminded of the decision of the Court of Appeal in R v Fardon [2010] QCA 317 at [45] and more particularly in the reasons of Muir JA at [39].

At this juncture, a certain observation might be made.  True it is that each case that I have referred to might be said to be unusual or an extreme circumstance.  At the hearing, the learned Crown Prosecutor made submissions designed to distinguish the facts and circumstances in each of the cases I have mentioned from those that apply here, and some of what she submitted had force.  But one, I consider, must not lose sight of the fact that the circumstances of cases where disquiet has been expressed of the capacity of a jury to dispassionately carry out its sworn function because of the prejudicial effects of publicity and notoriety thus attracting or warranting orders of the type sought here will of necessity be unusual or extreme if for no other reason than the well-recognised public interest or presumption in favour of a jury trial will result in a circumstance that it will only be in the unusual or extreme that a no jury order will be made.

In submissions, senior counsel for the respondent elaborated upon the proposition that I have just mentioned and made other points.  She accepted that in this case there had been extensive and potentially prejudicial publicity, however, she submitted, the publicity, albeit prejudicial, was not so prejudicial or so extreme that its possible effects could not be cured by careful directions to the jury at empanelment and at significant points during the trial.  Senior counsel submitted that there was a strong public interest in the institution of jury trials that served the administration of justice and favoured that institutions support and maintenance.  In particular, she referred to some observations of the High Court in Alqudsi v R [2016] 258 CLR 203 at [117].  Further, I was directed to section 615(5) of the code and to the circumstance that in cases where objective community standards such as negligence or reasonableness were at play, then the Parliament had provided that these were circumstances that might favour a trial before a jury.

I pause here to make some observations based on my own experience as a trial Judge.  I have presided at a number of trials where infants died allegedly as a result of the actions, that is, the violent actions, of either parents, close family or carers.  My experience is that such trials place a great strain on jurors.  Much of the evidence is apt to be distressing, particularly the evidence of the nature and extent of injuries and the evidence surrounding the post mortem.  Further, the evidence of neglect, if there be any, and of the suffering by the child is apt to be distressing to jurors and place a strain upon the jury as a whole and, indeed, all that are involved in the trial.

But notwithstanding this manifest and understandable situation, I have in each case been left in no doubt that the jurors were able to be for the most part conscientious and for the most part were because of their experience and conscientiousness well equipped to exercise their judgment guided by and informed by the Court’s directions.  My experience is that juries and individual jurors are very conscientious, indeed, scrupulous to ensure that trials are, to the extent to which they have to participate in them, conducted fairly and in accordance with law; thus, it should not be thought to follow merely from the circumstance that a trial raising the issues of fact that this trial may raise because it is apt to be distressing and place a strain on jurors would warrant a no jury order being made.

Further, for the reason that my experience is that juries are able to stay true to their oath and to follow the directions of the Courts, I accept that as section 615(5) suggests, there is a strong presumption in favour of a trial by a Judge with a jury in cases such as this, but there is one caveat to what I have just said In none of the trials that I have presided at has the extent, manner or intensity of pre-trial publicity that has attended this case been present.

In each of the circumstances that I have hitherto been familiar with, there has been, of course, a certain amount of pre-trial publicity surrounding the circumstance of death, the charging of the defendant and sometimes the committal proceedings, but the extent of the pre-trial publicity in this case has been extraordinary.  And it falls into several different categories.  There has been publicity in newspapers and in television relating to the circumstances of death, the charging of the applicant defendant and the proceedings in the lower Court.  That press publicity has resulted in photographs of the infant being widely circulated, but that is not the full extent of the publicity.

Because of issues relating to the circumstances of the death of the infant but also his care and health at times preceding his death, there have been a number of governmental and departmental inquiries into the circumstances of the infant’s death that has attracted a considerable amount of publicity.  Further, there have been petitions to Parliament raising matters of public concern directly referring to the circumstances or fact of the infant’s death.  There has also been considerable social media coverage and commentary about the death of the deceased and the circumstances of his death.  That level of publicity or social commentary has been very extensive.  It has been persistent, and it has reached levels that might fairly be described as almost saturation at times.  In tone, much of the publicity, whether it has been in the press or in social media, has been impassioned or sensational.  In my view, the particular circumstances of the publicity given to the death of the infant gives rise to a risk that a jury or a significant number of jurors would be aware of that pre-trial publicity and commentary and so affected as to be incapable of objectively, that is, dispassionately, evaluating the evidence and following the directions of the trial Judge.

The prospects of prejudice to a fair trial are so great in the particular circumstances that apply here that I hold grave fears that a fair trial of the counts against the applicant before a jury is not possible.  So great is the compromise to the prospects of a fair trial by reason of the publicity, were there to be a trial before a Judge with a jury, then I have concluded that, somewhat exceptionally, an order should be made under section 615(1) as contemplated by section 615(4)(c) that the trial of the applicant be conducted by a Judge sitting without a jury;  hence, the ruling I announced at the commencement.

The order or ruling that I have made that the trial of the applicant be before a Judge without a jury removes the risk of prejudice or embarrassment to the defence of the charges warranting an order under section 597A of the code for the severance of counts 1 and 2, that is, the holding of separate trials. A trial Judge sitting alone will be well equipped to prevent evidence that may be relevant to only one count infecting his or her deliberations upon the other.  The reasons accompanying any verdict will expose any such failure.  A trial before a Judge without a jury will permit the timely raising and ruling upon any contentious evidentiary points that might arise either before the trial or during the trial without unduly prejudicing the prospects of a fair trial or lengthening the trial unduly.

There is, however, an obvious difference in content between section 286 of the code which is relevant to the charge of the unlawful killing and section 364 which is relevant to the charge of cruelty to the child.  Again, I refer to the particulars given by the Prosecution that bear upon this. At the trial, the Prosecution will submit that there is evidence admissible against the applicant of a “pattern of neglect” vis-à-vis the child.  While, no doubt, at the trial, care will have to be given to the admissibility of evidence and to which count any evidence is relevant, in the view I take the two charges are cognate or related in that they form part of a “series of offences of similar character” within section 567 (2) of the code.

Here, the circumstance or facts that link the charges as a series of offences of similar character is that neglect is an issue and, further, whether that in either instance the neglect is criminal.  For the reasons I have given therefore, the rulings will be as I have announced.  I further order that there be no publication of these reasons until after the conclusion of the trial of the applicant.  To remove any doubt, I make it plain that this order is not intended to prevent publication of the rulings per se, merely, the reasons for the ruling.