R v TAZ [No 2][2023] QSCPR 16

SUPREME COURT OF QUEENSLAND

1. [1]
   There are two applications before the court but the relief sought in each is the same – a no jury order pursuant to s 615 of the Criminal Code 1899 (Qld). The making of such an order is said by the applicants to be necessary in the interests of justice because of “significant pre-trial publicity that may affect jury deliberations”: s 615(4)(c).
2. [2]
   The applicants are conjointly charged on indictment with the murder of a 15-year-old boy, Angus Beaumont, on the evening of 13 March 2020. The applicants were both slightly younger than the deceased. According to the Crown, they were loitering near a skatepark in Redcliffe when they encountered a group of four other youths including the deceased. A member of that group, SJ, asked the applicants if they wanted to buy some cannabis. The applicants agreed but, having no money, called a friend to bring some cash to the park to complete the purchase. The transaction was completed, following which the applicants and their friend weighed the cannabis inside a nearby toilet block. After a short time, TAZ emerged. He was said to have been brandishing a knife and demanding the return of the purchase money. Some members of the deceased’s group were also armed but, when confronted by TAZ, they backed away before running off in different directions. SJ was then pursued by TAZ and SED for some distance before the deceased is depicted on CCTV footage. He appears to take a knife from SJ and steps towards the applicants. The three youths came together and, during what followed, the deceased was fatally stabbed to the chest by TAZ. 

3. [3]
   Having been arrested and charged two days later, the case proceeded after a committal hearing to a trial before a judge of this court and a jury on 30 May 2022. On 16 June 2022, the jury found both applicants guilty of murder and they were later sentenced.
4. [4]
   The applicants lodged appeals against their convictions and, on 7 July 2023, the Court of Appeal allowed both appeals, set aside the verdicts and ordered a retrial: R v TAZ; R v SED [2023] QCA 137. There had been shortcomings in the directions given by the trial judge to the jury about what his Honour had described as post-offence conduct. There was also evidence of other conduct of that ilk that had not been the subject of use directions in the summing-up. The effect of that evidence was disputed but it was said to be “central to the Crown case” (at [49], [50] and [63]). It was placed before the jury in the form of CCTV footage appearing to depict the applicants slapping hands immediately after the stabbing. The jury ought to have been given directions about the use of that evidence ([53], [63]). The failure to do so meant there had been a miscarriage of justice warranting a retrial ([54], [60]).
5. [5]
   Subsequently, the retrial was listed to commence on 4 December 2023. Of importance to the statutory test to be applied on these applications, I record that the parties do not know the identity of the trial judge to whom the case has been allocated.
6. [6]
   The case against TAZ is of course that he is the person alleged to have stabbed the deceased. The Crown proceeds against SED on the basis that he was a party to that act. Based on the way in which their respective defences were conducted at the first trial, it appears likely that the applicants will again maintain that they acted in self-defence or under compulsion in the interaction they had with the deceased. 
7. [7]
   As earlier indicated, a no jury order is sought by both applicants pursuant to s 615 of the Criminal Code. In R v Pentland (2020) 4 QR 340 I summarised the principles to be considered on the hearing of such an application (at [9]-[13]). Of particular relevance to these applications was this:

“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,^[1] R v Kissier^[2] and R v Sica^[3] – and been considered and applied in a number of single judge decisions of this court – R v Prisk & Harris,^[4] R v Clough,^[5] R v Patel,^[6] R v BCM^[7] and R v Chardon^[8] – as well as several decisions of judges of the District Court.^[9] 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 [of the Criminal Practice Rules (Qld) 1999] along with what has been held regarding their operation, several propositions may be seen to emerge. They are these:

1. 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);
2. 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);
3. 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,^[10] and the discretion is unfettered.^[11] 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.^[12] The expression is concerned with the “imperative requirement of a fair trial”^[13] 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”;^[14]
4. 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.^[15] 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”;^[16]
5. 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);

6. 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,^[17]negligence,^[18] indecency, obscenity or dangerousness^[19]: 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”.^[20] 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”.^[21] 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;
7. 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;
8. 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;^[22]

   …

12. The court may inform itself in any way it considers appropriate in relation to the application: s 614(5);
13. 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;
14. 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.”^[23]

8. [8]
   In addition to the above summary, it should also be recorded that a no jury order cannot be made in a case such as this unless it is made with respect to both accused. That is because they are to be tried together: Criminal Code, s 615A. Otherwise, it is worth underscoring that s 615(4)(c) expressly contemplates the making of an order where there has been “significant pre-trial publicity that may affect jury deliberations”.
9. [9]
   Whether pre-trial publicity may have that effect will always be a question of impression but, of course, much will depend on the nature, extent and duration of the publicity in the particular case at hand. Plainly, it will not be in the interests of justice for a trial to proceed before a jury if the publicity is such that a fair trial according to law can no longer be secured. As Martin J (as his Honour then was) observed in R v Prisk & Harris, this requires consideration of the imperative requirement of a fair trial in the context of the case at hand including, as it does, the “acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice”.^[24] Furthermore, the feature that objective community standards will require consideration in the context of the defences likely to be raised by the applicants at the retrial cannot, without more, compel refusal of the application. 
10. [10]
    The governing principles made clear, I record that each of the formal requirements for the making of a no jury order have been met by the applicants. In addition, a considerable body of evidence was placed before the court to establish the nature, duration and extent of the publicity attracted by this case.   
11. [11]
    A review of that evidence reveals that there has been extensive reporting of the case in the electronic and print media, and much of it highly prejudicial. In particular, there was widespread reporting of the alleged significance of the CCTV footage appearing to depict the applicants slapping hands immediately after the stabbing and, following the sentencing hearing in October last year, their respective histories of performance while subject to grants of bail as well as prior offending.
12. [12]
    For example, in online and print articles published after the sentencing hearing, the headlines such as the following were published:

    1. “Child killers with long rap sheets repeatedly given bail before murder”;
    2. “Teens’ trail of violent crime”;
    3. “Shocking past crimes of murderous teens revealed”;
    4. “Kid killers out by 21”.
13. [13]
    The content of the accompanying articles was no less sensational: 

    1. “The teenage thugs … had a history of violence including knife crime and continued to offend even after being granted bail for the boy’s murder”;
    2. “The appalling criminal histories of the teenage offenders was revealed in a sentencing hearing…”;
    3. “one of the teens … had a criminal history which began when he was aged 11…”;
    4. “His prospects of rehabilitation in the Crown submission are poor and he demonstrated a significant risk to the community…”;
    5. “The second defendant … also has a serious criminal history dating back to when he was aged 13”;
    6. “Arson, assault and threatening to kill a baby. These are just some of the crimes committed by the 14-year-old thugs…”;
    7. “repeat violent offenders”;
    8. “Despite extensive criminal histories including for offences of violence and knife crime, neither of the offenders had previously received custodial sentences”;
    9. “The teen murderers, who both had extensive criminal histories, were last week sentenced…”’
    10. “The remorseless killers who high-fived as they fled the scene both already had appalling criminal histories by the time they set their sights on Angus. They'd faced the courts dozens of times and again and again they were allowed to walk free”;
    11. “Both teens, who were repeat violent offenders with one on bail and the other on parole at the time of the murder, were found guilty in June”;
    12. “Both were repeat violent offenders with lengthy criminal histories, one out on bail and the other on parole at the time of the murder, and both went on to commit further offences while on bail for Angus's murder”; and
    13. “Both teenagers had long rap sheets. Both had been released on bail repeatedly before the night Angus died.”
14. [14]
    Then, within days of the successful appeal, there was more of the same. The relevant media organisations, undeterred by the feature there had been an order for a retrial, persisted in the making of reports containing references to the applicants’ past offending. In a Brisbane newspaper, an article commencing on the front page under the headline, “RETRIAL RULING IS SLAP IN FACE”, contained these statements:

    1. “But the repeat violent offenders could soon be back on the streets after the Court of Appeal set aside their convictions and ordered a retrial”; and 
    2. “The sentencing court heard both alleged offenders had extensive criminal histories, including for offences of violence and knife crime.”
15. [15]
    Likewise, on two morning television programs that went to air on the same day, specific reference was made to the applicants’ criminal histories, with one commentator stating:

“You know, these kids, by the way, have violent knife crime, rap sheets a mile long. They get a chance to be out on a technicality.”

16. [16]
    A case such as this will always attract considerable attention in the media and the publication of criminal histories following sentencing hearings is commonplace. In the ordinary course, juries are given directions by the trial judge to ignore any such reporting. Indeed, our system of criminal justice requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges.^[25] However, that does not “involve the assumption that their decision-making is unaffected by matters of possible prejudice”.^[26] There will be cases – and this is one of them – where the reporting is so vociferous and the content so prejudicial that it would be asking too much of a jury to do so. 
17. [17]
    Here, what tips the balance in favour of the making of a judge alone trial order is the persistent reporting of the applicants’ criminal histories, including after a successful appeal. This body of reporting is not only proximate to the start of the retrial, it must also be seen to form part of more general and virtually continuous diet of reporting regarding “youth crime” involving, in particular, the use of knives. It would be fanciful to think that a jury could be empanelled without there being a real risk that one or more of its members might be affected by a belief that the applicants had previously been before the courts for “violence including knife crime”, to borrow a much-repeated theme from the reporting. Accepting as I do that directions from the trial judge would be incapable of satisfactorily addressing that prejudice, I am persuaded that jury deliberations may well be affected with the consequence that the applicants could not thereby be assured of a fair trial.
18. [18]
    For these reasons, it is in the interests of justice that the applicants be tried by a judge alone. Orders will be made accordingly.