R v Moore; Tracey[2022] QSCPR 4

SUPREME COURT OF QUEENSLAND

1. [1]
   HIS HONOUR:  Paul Mathew Moore and Emily Jane Tracey are charged on indictment with one count of murder, namely, that on or about 6 February 2018 at Wynnum West in the State of Queensland, they murdered James Andrew Switez‑Glowacz.
2. [2]
   Both defendants have filed an application for a direction or ruling pursuant to section 590AA of the Criminal Code 1899 (Qld) seeking a no jury order pursuant to section 615 of the Code.  The defendants’ joint trial has had three listings in the Supreme Court at Brisbane.  The first trial commenced on 27 January 2021 before Burns J with the jury being discharged on a joint application by each defendant on 5 February 2021.  The second trial commenced on 13 July 2021 before his Honour with the jury being discharged on a joint application by each defendant on 22 July 2021.  On 22 September 2021, Bowskill SJA set the trial down for three weeks commencing on 14 February 2022.  On the court calendar the trial was allocated to me.
3. [3]
   On 10 January 2022 the Chief Justice and the Chief Judge issued a notice to legal practitioners in relation to the COVID-19 pandemic, suspending jury trials.  Relevantly, the notice stated:

“All new trials in Queensland requiring a jury have been suspended as a precautionary measure.  Jury trials will not recommence before 21 February 2022.  The situation will be reviewed on 11 February 2022.  Jury trials currently listed to commence before that date will be reviewed by the Court at a time notified by the registry.”

4. [4]
   On 19 January 2022 the matter was reviewed by Bowskill SJA.  Her Honour made directions for the exchange of submissions for an application for a trial by Judge alone.  The listing of the matter for trial by jury commencing on 14 February 2022 was vacated, and the defendants were remanded in custody.  It was however indicated that the trial could commence on 14 February 2022 if no jury orders are made.  The estimated length of a trial by judge alone is somewhere between two to three weeks.
5. [5]
   The listing of the trial, having been vacated, it is now the case that the identity of the trial Judge is not known.
6. [6]
   The position of the Crown is that it consents to both applications.
7. [7]
   Chapter division 9A of part 8 of the Code provides for an application for trial by judge alone.  Section 614 provides:

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.

3. (2)
    The application must be made under section 590AA before the trial begins.

3. (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.

3. (4)
    Subsection (3) does not limit section 615 or any other restriction on making a no jury order imposed by this chapter division.

3. (5)
    The Court may inform itself in any way it considers appropriate in relation to the application.

3. (6)
    For subsection (2), the trial begins when the jury panel attends before the Court.

Section 615 provides:

3. (1)
    The court may make a no jury order if it considers it is in the interests of justice to do so.

3. (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. (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.

3. (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.

8. [8]
   As I have already observed, each defendant applies for a no jury order and the Crown consents to the making of such orders.  As the trial listing has been vacated, the applications may proceed on the basis that the identity of the trial judge is not known to the parties as at the time these applications are decided.  It is therefore not necessary for the Court to be satisfied pursuant to section 614(3) that there are special reasons for making the orders.  The primary test for making a no jury order is found in section 615(1), namely if the Court considers it is in the interests of justice to do so.
9. [9]
   Chapter division 9A of part 8 of the Code was inserted in 2008.  The relevant principles as to the application of sections 614 and 615 are helpfully identified by Burns J in R v Pentland (2020) 4 QR 340, in particular at [9]–[13].  His Honour referred to the discretion contained in section 615(1) as constituting “the overriding consideration” and noted the discretion is unfettered.  His Honour continued:^[1]

“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’.”

10. [10]
    The onus is on the applicants to persuade the Court that it is in the interest of justice that that be the mode of trial.
11. [11]
    As to the circumstances of the present case, they are set out in the written submissions of counsel for Ms Tracey at paragraphs 7 to 28.  The factual summary of the circumstances of the alleged offending reflects the Crown trial memorandum.  From a consideration of that factual summary, it is evident that for the purposes of section 615(5), none of the factual issues requires the application of objective community standards, including, for example, issues of reasonableness, negligence, indecency, obscenity or dangerousness.  As correctly identified by the Crown in its written submissions, however, the Court will need to consider whether any defences fairly arise on the evidence.  If defences are open, it may require a factual assessment by the Court of the elements of any defence such as reasonableness (self-defence) and for the standard of the ordinary person (provocation).
12. [12]
    I accept the Crown’s submission that the Court’s consideration of such matters is not inimical to a judge alone trial.  Although reasonableness and the standard of the ordinary person are objective standards, they do not require the assessment of community standards per se. 
13. [13]
    The applicants in their written submissions emphasise that the present applications are made proximate to the third trial listing of the matter.  They submit they are entitled to a resolution of the serious charges in a timely way.  The applicants further submit that it is in the interest of the parties as well as the public interest in the due administration of justice that the matter be advanced by a no jury order. 
14. [14]
    Not only has this matter been delayed by the discharge of juries on 5 February 2021 and 22 July 2021 and further delayed by the suspension of jury trials pursuant to the notice of the Chief Justice and the Chief Judge dated 10 January 2022, there remains ongoing uncertainty as to when jury trials will be able to recommence.  The Crown identifies a further consideration relevant to delay.  The juries on the two previous trials were discharged on the eighth day of each trial.  Most of the Crown witnesses had completed their evidence on both trials.  The circumstances of the alleged offending now relate to events which occurred more than four years ago.  I also note that both applicants have been remanded in custody for approximately four years. 
15. [15]
    Both applicants and the Crown rely on the observations of Burns J in R v Pentland:^[2]

“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.”

16. [16]
    I accept the submission of counsel for Ms Tracey that these observations of Burns J are apt to the present circumstances.  Although the present applications proceed on the basis that the identity of the trial judge is not known, and so the “special reasons” requirement in section 614(3) does not apply, I would otherwise have been satisfied for the purposes of section 614(3) that there are special reasons in the present case for the making of the orders sought.
17. [17]
    I consider that it is in the interests of justice that a no jury order be made in respect of each applicant.