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R v Chardon[2018] QSCPR 17

SUPREME COURT OF QUEENSLAND

CITATION:

R v Chardon  [2018] QSCPR 17

PARTIES:

R

v

JOHN WILLIAM CHARDON

(defendant/applicant)

FILE NO:

SC No 801 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

2 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

2 October 2018

JUDGE:

Boddice J

ORDER:

The application is refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERALLY – where the applicant was charged with one count of murder – where the alleged victim was the applicant’s wife – where the applicant seeks an order that he be tried by a Judge sitting without a jury – where the applicant relied on extensive pre-trial publicity of the circumstances surrounding the alleged offence and of his previous convictions, the character and notoriety of the person to whom he allegedly confessed and expert evidence as to mobile telephone locations on the night of disappearance – whether the interests of justice favour trial by jury

Criminal Code 1899 (Qld), s 615

Gilbert v R (2000) 201 CLR 414

R v Chardon [2016] QCA 50

R v Fardon [2010] QCA 317 

R v Glennon (1992) 173 CLR 592

R v Kissier [2011] QCA 223 

R v Sica [2014] 2 Qd R 168

Redman v R [2015] NSWCCA 110

COUNSEL:

A J Kimmins for the applicant

S Farnden for the respondent

SOLICITORS:

Paddington Law for the applicant

Office of the Director of Public Prosecutions for the respondent

  1. [1]
    BODDICE J: On 6 June 2018, an indictment was presented in this Court charging John William Chardon with one count of murder.  The indictment alleges that on or about the 6th day of February 2013, at Upper Coomera in the State of Queensland, Chardon murdered Novy Aristananda Chardon.  It further alleges the offence was a domestic violence offence.
  2. [2]
    By application filed 13 August 2018, Chardon seeks an order that he be tried by a Judge sitting without a jury.

Background

  1. [3]
    Novy Aristananda Chardon was Chardon’s wife.  She was last seen on the morning of 6 February 2013.  Her body has not been located to date.
  2. [4]
    The alleged motive for her murder is that Chardon wanted to deprive his wife of both a property settlement and access to their children.
  3. [5]
    The evidence from which a jury will be asked to draw the inference that the wife is dead, includes there being no confirmed sightings of her after the night of 6 February 2013, non-access to bank accounts or other government agencies since that date, and her passport and a considerable quantity of cash being located in her bedroom after her disappearance.
  4. [6]
    The Crown case against Chardon is a circumstantial case.  It relies on evidence of the relationship between Chardon and his wife, including past concerns expressed by her about violence and Chardon’s motive to intentionally kill the deceased.
  5. [7]
    The relationship evidence includes evidence that whilst Chardon and his wife were living in the same residence at the time of her disappearance, they were separated, with Chardon sleeping in a guest bedroom.  Further, the wife is alleged to have told multiple people that Chardon was to move out shortly and there was correspondence about proposed terms of settlement on the day of her disappearance, a meeting having taken place with lawyers the day before.  
  6. [8]
    Evidence will be led of fears expressed by the wife to multiple witnesses in the event of a divorce settlement, including a fear for her life and alleged past acts of domestic violence by Chardon.
  7. [9]
    The Crown case also relies upon allegedly false statements by Chardon to police as to the circumstances of the deceased leaving the family residence; post-offence conduct, including the purchase of ammonia and the hiring of a carpet cleaner on the morning of 7 February 2013, there being evidence of a large urine stain under the carpet in her bedroom, in the context of the Crown case being she was likely killed at that residence; evidence that Chardon had discussed organising for someone to kill the deceased sometime prior to her disappearance, the reported theft of firearms and the deactivation of an alarm at Chardon’s business on the evening of 6 February 2013.
  8. [10]
    Finally, the Crown case relies on statements allegedly made by Chardon to a witness, Peter Foster in the nature of confessions by Chardon, to having deliberately killed his wife; to having cleaned the carpet because the deceased had urinated and vomited on it; and to having taken steps to dispose of her body.

The application

  1. [11]
    The application is brought on the basis that Chardon contends the interests of justice warrant the making of an order that he be tried without a jury. Apart from the circumstantial nature of the case alleged against him, Chardon relies on three features particular to his circumstances.
  2. [12]
    First, extensive pre-trial publicity of the circumstances surrounding this alleged offence and of his previous convictions, on 15 August 2014 and 21 June 2016, of sexual offences against children, for which he was sentenced to six years imprisonment, with a parole eligibility date at the one half mark, and a further five months imprisonment, to be served cumulatively.
  3. [13]
    Second, the character and notoriety of Foster and the circumstances in which the alleged confession to Foster took place, namely, whilst Chardon was incarcerated for those child sex offences.
  4. [14]
    Third, expert evidence as to mobile telephone locations on the night of disappearance of Chardon’s wife.
  5. [15]
    Chardon contends these factors, individually and in combination, warrant, in the interests of justice, an order that he be tried without a jury.
  6. [16]
    The Crown oppose the application.  The Crown contends the interests of justice favour trial by jury.

Relevant principles

  1. [17]
    Section 615 of the Criminal Code provides:

“The court may make a no jury order if it considers it is in the interests of justice  to do so.”

  1. [18]
    The section sets out a number of features that may be relevant features for the Court to consider. One of those features is whether there have been significant pre-trial publicity that may affect jury deliberations.[1]
  2. [19]
    An applicant for a non-jury trial order has the onus of demonstrating that the interests of justice warrant the exercise of the discretion in favour of a non-jury trial.[2]
  3. [20]
    An application for such an order is to be determined without any preconceptions or presumptions about the appropriate mode of trial in the particular case.[3]  There is no presumption in favour of trial by jury.  The overriding consideration is whether it is in the interests of justice to make that order.[4]
  4. [21]
    A determination of the interests of justice will turn on a consideration of the individual circumstances.  As was observed by Muir JA in R v Fardon, section 615 provides, in an appropriate case, a useful mechanism by which a court can avoid the possibility of an unfair trial, in circumstances where:

the ability of a society to provide a fair and unprejudiced trial is an indispensable basis of any acceptable justification of the restraints and penalties of the criminal law.  Indeed, it is a touchstone of the existence of the rule of law.” [5]

Consideration

  1. [22]
    There is no doubt the circumstances of Chardon’s wife’s disappearance and of Chardon’s arrest and subsequent committal for the offence of murder, have been the subject of publicity, properly to be described as extensive and significant.  In addition to that publicity, there has been in the past, extensive publicity of the circumstances of Chardon’s convictions for child sex offences.
  2. [23]
    The existence of significant pre-trial publicity that may affect jury deliberations is a specific factor to be considered in the determination of whether the interests of justice favour ordering Chardon’s trial be without a jury.  However, significant pre-trial publicity may not, in itself, be sufficient to ground a finding that it is in the interests of justice that a defendant’s trial occur without a jury, if the adverse effect of that publicity on a jury’s deliberation can properly be cured through directions to the jury.[6]
  3. [24]
    Extensive pre-trial publicity is often a feature in criminal proceedings.  For this reason, jurors are specifically directed to determine a defendant’s guilt by reference to the evidence alone and to disregard any pre-trial publicity.  Jury trials are properly conducted on the basis jurors will be true to their oaths or affirmations and follow those directions.[7] 
  4. [25]
    It must be accepted that publicity of Chardon’s previous convictions of child sex offences can give rise to a particular level of prejudice.  However, subject to a consideration of the circumstances of the alleged confessions to Foster, there is no reason why the fact of those convictions would be the subject of evidence at Chardon’s trial.  Further, any publicity associated with those convictions is itself properly curable through appropriate direction

to the jury as to the need to determine the case on the evidence and to disregard anything they may have read or heard about the defendant in the past.

  1. [26]
    The nature and extent of the pre-trial publicity is, in the present case, not of a character in itself, sufficient to establish that Chardon will be unable to obtain a fair trial, if that trial be by jury.
  2. [27]
    The second factor relied upon by Chardon relates to Foster’s evidence.  There are two aspects to Chardon’s reliance upon this evidence as supportive of a conclusion it is in the interests of justice that Chardon’s trial occur without a jury.  
  3. [28]
    First, Foster is a notorious conman.  Second, Foster’s evidence will of necessity include evidence that he was in a jail cell with Chardon due to Chardon’s convictions of child sex offences.  Chardon submits this conclusion follows from the opportunities taken by Foster at committal to volunteer that information and his evidence that one of the reasons he assisted authorities in respect of Chardon’s matter was because Chardon was a child sex offender.
  4. [29]
    Foster’s past history of dishonesty will clearly mean his credibility will be significantly in issue at trial.  His motivation for assisting the Crown is likely to assume prominence at trial, as part of a challenge to the reliability of his evidence of Chardon’s alleged confessions.  
  5. [30]
    Whilst it would be incumbent upon the prosecutor to control Foster to ensure such inadmissible, and highly prejudicial evidence was not led before the jury, there would remain a significant risk that Foster would rely on that information in defence to cross examination directed at the reliability of his evidence.
  6. [31]
    A relevant factor in determining whether the interests of justice warrant an order that Chardon’s trial occur in the absence of a jury, is Chardon’s entitlement to defend himself, by “all forensically available means”, and that he “should not, without good reason, be forced to make a choice between the risks that a jury will be unfairly prejudiced against him…. on the one hand and in censoring his defence on the other.”[8]
  7. [32]
    Foster’s motivation for assisting police was specifically adverted to in Foster’s statement dated 21 May 2015.  Foster said, 

I was asked by Detective Senior Constable Brown, when he first visited me in Wolston in February this year, what my motivation was to do this.  I told Detective Brown then that I was aware that there was a financial reward, however I had no interest in claiming this.  I had originally stated that I would like to either have my sentence reduced, which I didn’t really believe was possible, or be moved to a prison farm.  I can say that after spending a number of weeks with John Chardon, my motivation changed to wanting to convict him of killing his wife.  He has told me that he has killed his wife and I do not want to see him get away with this.  I would still like to be considered to be moved to a farm.”

  1. [33]
    That paragraph forms part of a statement which Foster attested to as being accurate on oath.  Foster will be able to be cross examined in relation to that stated motivation for assisting police.  There is no reference in that statement to the motivation being related to Chardon’s past criminal history.  
  2. [34]
    In such circumstances, Chardon will be able at trial to pursue Foster’s credibility in relation to his reasons for assisting police.  He will not be forensically disadvantaged and a trial Judge can take appropriate steps to ensure Foster does not refer to Chardon’s past criminal history.
  3. [35]
    Neither Foster’s background, nor the circumstances in which the alleged confessions were made to Foster, warrant a conclusion that Chardon will be unable to obtain a fair trial, if held before a jury. 
  4. [36]
    The third factor relied upon by Chardon relates to the Crown’s reliance upon expert evidence as to mobile telephones on the night of his wife’s disappearance.  Whilst complex expert evidence can be a basis for a conclusion that the interests of justice warrant an order that a defendant’s trial be by Judge, without a jury, the evidence relied upon by the Crown as expert evidence is neither complex nor of such a scientific nature as to warrant a conclusion that Chardon would be unable to obtain a fair trial if that trial be held before a jury.
  5. [37]
    The remaining matter relied upon in support of an order that the interests of justice warrant a non-jury trial, is the fact that the Crown case is a circumstantial case.  However the nature of that case, whilst requiring a jury to draw inferences of guilt from various pieces of circumstantial evidence, is not a case which a jury, properly directed by the trial Judge, would have difficulty in determining whether Chardon is guilty of the offence, beyond reasonable doubt.  
  6. [38]
    The factors relied upon by Chardon as justifying an order that he be tried without a jury, either individually or in combination, are insufficient to establish that the interests of justice warrant an order that Chardon be tried without a jury. 

Conclusions

  1. [39]
    Chardon has not discharged the onus of demonstrating that the interests of justice warrant the exercise of the discretion in favour of a non-jury trial.
  2. [40]
    The application is refused.

Footnotes

[1] Criminal Code 1899 (Qld) s 615(4)(c).

[2] R v Sica [2014] 2 Qd R 168 at 372 [16] – [17].

[3] R v Kissier [2011] QCA 223 at [30]; R v Sica [2014] 2 Qd R 168 at [25].

[4] R v Kissier [2011] QCA 223 at [31].

[5] [2010] QCA 317.

[6] R v Chardon [2016] QCA 50 at [5].

[7] Gilbert v R (2000) 201 CLR 414 at 420; R v Glennon (1992) 173 CLR 592 at 603.

[8] Redman v R [2015] NSWCCA 110 at [16].

Close

Editorial Notes

  • Published Case Name:

    R v Chardon

  • Shortened Case Name:

    R v Chardon

  • MNC:

    [2018] QSCPR 17

  • Court:

    QSCPR

  • Judge(s):

    Boddice J

  • Date:

    02 Oct 2018

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2018] QSCPR 1702 Oct 2018Application for no-jury order refused: Boddice J.
Primary Judgment[2019] QSCPR 401 May 2019Application to exclude evidence of a previous domestic violence incident and evidence sought to be led pursuant to the Tripodi principle refused: Douglas J.
Primary Judgment[2019] QSCPR 930 Jul 2019Application to exclude alleged confession allowed: Lyons SJA.
Primary Judgment[2019] QSCPR 1013 Aug 2019Application to exclude evidence of accused attempting to obtain a gun and/or procure hitmen refused: Lyons SJA.
Primary Judgment[2019] QSCPR 1102 Sep 2019Application by the Crown to cross-examine the defendant in relation to his previous convictions and other allegations of bad character; application refused: Lyons SJA.
Primary JudgmentSC801/18 (No citation)09 Sep 2019Date of conviction of manslaughter, having been found not guilty of murder, after trial before Lyons SJA and jury.
Primary JudgmentSC801/18 (No citation)11 Sep 2019Date of sentence of 15 years' imprisonment (Lyons SJA).
Appeal Determined (QCA)[2020] QCA 27708 Dec 2020Appeal against conviction and application for leave to appeal against sentence dismissed upon ground that court’s jurisdiction ceased upon convicted person’s death (which, in this case, occurred after argument heard and decision reserved): Fraser JA, Mullins JA, Applegarth J.

Appeal Status

Appeal Determined (QCA)

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