R v Struhs[2023] QSCPR 19

SUPREME COURT OF QUEENSLAND

1. [1]
   The defendants are jointly charged on indictment 350 of 2023 with offences arising from the death on 7 January 2022 of a child, Elizabeth Struhs.  They are all members of a religious group known as The Saints.  One of the defendants, Brendan Stevens, was at the relevant time the leader of The Saints. 
2. [2]
   Jason Struhs is Elizabeth’s father.  He is charged with her murder on the basis that he caused the death of Elizabeth by failing to provide insulin to her and/or not providing medical care and treatment for her, knowing that would probably cause her death.
3. [3]
   Kerrie Struhs is Elizabeth’s mother.  She is charged with manslaughter on the basis that she failed to provide insulin to Elizabeth and/or did not provide medical care and treatment for her. 
4. [4]
   Brendan Stevens is charged with the murder of Elizabeth on the basis that he counselled either or both Jason Struhs and Kerrie Struhs to cease providing insulin to and/or not to provide medical care and treatment for Elizabeth, knowing that to do so would probably cause her death.  Or, alternatively, that he aided or enabled either or both Jason Struhs and Kerrie Struhs to unlawfully kill Elizabeth by encouraging and supporting them to cease providing insulin to her and/or not to provide medical care and treatment to her, knowing that would probably cause her death.
5. [5]
   The remaining 11 defendants, Zachary Struhs, Loretta Stevens, Therese Stevens, Andrea Stevens, Acacia Stevens, Camellia Stevens, Alexander Stevens, Sebastian Stevens, Keita Martin, Lachlan Schoenfisch and Samantha Schoenfisch, are each charged with manslaughter on the basis that, by their words and actions, they counselled and/or procured and/or aided Elizabeth’s parents to unlawfully kill her. 
6. [6]
   Each of the defendants is self-represented.  They have all expressed a desire to be tried together.
7. [7]
   The Crown applies for an order under section 614 of the Criminal Code that the defendants be tried by a judge sitting without a jury.  Given the number of defendants and that they wish to be tried together, the court cannot make a no jury order only in relation to one or some of the defendants.  The order, if it is to be made, must be in relation to all defendants.^[1] 
8. [8]
   Importantly, because the prosecutor has applied for a no jury order, the court may only make the no jury order if each of the accused persons consents to it.^[2]  And because the accused persons are not represented by a lawyer, the court must be satisfied the accused persons properly understand the nature of the application.^[3] 
9. [9]
   In this regard the defendants have had the benefit of an information memorandum prepared by the trial judge, Justice Burns, and provided to them in advance of a review hearing on 22 September 2023.  That information memorandum dealt with a number of matters, including the question of trial by jury or trial by judge alone.  There was also some discussion about this at the review hearing on 22 September 2023. 
10. [10]
    I have also outlined to the defendants today the following matters:

    1. That the application by the Crown is for the court to make an order that the trial of the charge against each of them be tried by a Judge sitting without a jury. 
    2. If I make the order the trial of the charges would take place before and be decided by a judge alone.  At present this is expected to be Justice Burns, who has already been responsible for managing this case.
    3. Any accused person charged with offences such as those with which the defendants have been charged is entitled to have those charges tried by a jury.^[4]  A jury comprises 12 members of the community who are selected at random from the electoral role.  Those 12 persons hear all the evidence in the case, hear the closing arguments of the prosecutor and the defendants, take directions from the judge on matters of law and then have the responsibility to deliberate on the question whether the Crown has proved the guilt of each of the accused persons beyond reasonable doubt. The jury would have to consider the charge against each accused person separately and their verdict must be unanimous.  They do not need to give any reasons for their verdicts.  If the jury cannot agree on their verdict in relation to any particular defendant, whether that is guilty or not guilty, there is a “hung” jury and the trial must start again.  Issues can also arise along the way in any jury trial which mean the trial cannot continue and must start again.  For example, inadmissible evidence or prejudicial statements, the effect of which cannot be overcome by a direction to the jury.  It is also possible that a trial judge would decide that it is simply not possible for a jury to deal with 14 cases in one and that there would need to be separate trials of the charge against some defendants, before others, in any event. 
    4. If I make the no jury order, the trial of the charge against each defendant will be heard and determined only by a judge.  The trial of all 14 defendants could be dealt with together by a judge alone.  Such a trial would proceed more quickly because there is no need for a jury to be empanelled and no need for directions to the jury or a summing up to the jury.  A judge alone can more readily deal with issues in relation to admissibility as the trial goes along.  This mode of trial removes the potential for a hung jury – the judge will decide, one way or the other, for all defendants.  It also removes the risk of a mistrial.  The judge must give reasons for their verdicts.  On the other hand, for the Crown to succeed they only need to persuade one person, the judge, of the guilt of each defendant beyond reasonable doubt, whereas with a jury the Crown has to persuade 12 people. 
    5. The defendants’ right of appeal is the same whether the trial proceeds as a trial by jury or by judge alone. 
    6. As Justice Burns explained in the information memorandum, there are many different theories as to the advantages or disadvantages of a trial by jury as opposed to a trial by judge alone.  The defendants were previously encouraged to take legal advice in relation to this but have elected not to.
    7. A key feature in the present cases is the defendants’ expressed desire to all be tried together.  Realistically, it may be the case that that cannot be done if the mode of trial involves a jury, because it would be too difficult for a jury to properly consider the case against each defendant separately.
11. [11]
    In understanding the nature of the application the defendants have also been provided with the Crown’s written submissions, as well as, at an earlier time:

    1. a copy of the provisions of chapter 62, division 9A of the Criminal Code (in relation to trial by judge alone);
    2. the commentary on those provisions from Carter’s Criminal Law Queensland; and
    3. a copy of R v Pentland [2020] QSC 78.

12. [12]
    Having outlined the matters above and having asked each of the defendants at the hearing today, I am satisfied the defendants understand the nature of the application. 
13. [13]
    In terms of the relevant principles that apply, the court may make a no jury order if it considers it is in the interests of justice to do so.^[5]  What is in the interests of justice is to be considered in the context of the particular case under consideration and is not capable of precise definition.  However, in broad terms the interests of justice in a criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after they have had a fair trial, the public interest in seeing that those things happen and the due administration of justice.^[6]

14. [14]
    Without limiting the relevant considerations, 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 has been significant pre-trial publicity that may affect jury deliberations.^[7]  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.^[8]
15. [15]
    In addition, because this case has already been allocated to a judge for trial, a no jury order may be made only if the court is satisfied there are special reasons for making it.  In practical terms, the court should consider first whether there are grounds which justify a no jury order and then, if there are, consider whether there are special reasons for making the order.  However, in many cases, including this one, the grounds and “special reasons” will overlap.^[9] 
16. [16]
    The prosecutor submits that it is in the interests of justice to make a no jury order in this case, for the following reasons.
17. [17]
    The trial is expected to be lengthy, with the current estimate being three months.  The prosecutor has said there will be numerous police and expert witnesses, in addition to extended police interviews for each of the accused, of some 100 hours, and a large volume of medical material and phone records.
18. [18]
    Next, the trial will be complex, with 14 defendants who have indicated a desire to be tried together.  In addition to logistical complexity, there will be legal complexity in relation to the admissibility of evidence, including as to whether evidence admissible against one defendant is admissible against another, and arising from the requirement to separately consider the case against each defendant.  As Justice Burns put it at the review in September, with all the defendants wishing to be tried together there would be 14 trials in one.
19. [19]
    The logistical difficulties are compounded by the fact that the 14 defendants are self-represented and in custody and all have declined or refused to obtain legal representation or apply for bail.  In addition to the difficulties of dealing with the disclosure and provision of evidence, and preparation for trial more generally, there seems little prospect of any joint admissions of uncontroversial matters, the availability of which may have shortened the trial.
20. [20]
    The alleged offending has attracted considerable media attention.  On the evidence, from the time of the death of Elizabeth Struhs in January 2022, to 23 September 2023, there have been more than 190 articles written about the accused, the police investigation and the subsequent court proceedings.  It is submitted that this level of media attention creates an inherent risk of prejudice.
21. [21]
    A further issue identified is the prospect of delay.  A trial of all of the accused before a judge alone could proceed without delay, with rulings as to admissibility of evidence able to be made during the trial.  On the other hand, if a no jury order is not made, the issues of admissibility will need to be dealt with in advance.  If a trial Judge were to conclude that the various challenges in this case could not be overcome in a single jury trial and separate trials were ordered, notwithstanding the expressed wish of the defendants, there would inevitably be significant delay in the finalisation of these matters.  And, it should be added, further potential for prejudice from media reporting in relation to the subsequent separate trials.
22. [22]
    The prosecutor also submits there is no factual issue in this case requiring the application of objective community standards.  That appears to be so, having regard to the case against each of the defendants, but even if there was an issue of this kind, as a matter of principle this would not militate against the making of the order, where other factors overwhelmingly support it.^[10]
23. [23]
    Overall, the prosecutor submits that these issues considered together, amount to special reasons in the interests of justice for making a no jury order.  It is submitted that a trial by judge alone reduces the risks of a mistrial, of prejudice by media reporting and of undue delay.  It would eliminate the possibility of a hung jury and is a mechanism by which all accused may have the joint trial that they desire while minimising the risk of unfairness inherent in that approach.  In this way it can be seen that the grounds supporting the making of the no jury order do overlap with the “special reasons” required in circumstances where the trial judge is known.  There is certainly no question of forum shopping that arises in this quite unusual case.
24. [24]
    Each of the defendants has told me that they consent to the making of a no jury order.
25. [25]
    For all the reasons relied upon by the prosecutor, I am satisfied it is in the interests of justice to make a no jury order.  Given the defendants’ expressed wish to be tried together, it seems to me that there is no other way to give effect to that preference and ensure a fair trial.  Juries are regularly directed to put aside feelings of sympathy or prejudice and to ignore anything they see, hear or read out of court, focusing only on the evidence.  Juries are also, in the experience of trial judges, diligent and disciplined in their approach to their task.  However, in the unusual circumstances of this case the potential for prejudice as a result of the significant pre-trial publicity and media reporting that has already and will continue to take place, may be difficult to neutralise.  A judge alone would be able to put this out of their mind.  When this is taken together with the expected length of the trial, the legal complexity of the case against 14 defendants and the logistical complexity of 14 self-represented defendants, the argument for a no jury order to be made in the interests of justice is compelling.  I am satisfied both that there are grounds for making a no jury order and that those grounds are special reasons justifying the making of the order. 
26. [26]
    I will therefore order, pursuant to s 614(1), that all the defendants be tried by a judge sitting without a jury.