R v GZN & BYH[2024] QSCPR 7

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicants applied for orders pursuant to s 615(1) of the Criminal Code 1899 (Qld) (Criminal Code) that they be tried by a judge sitting without a jury for the trial on Indictment Number 236/2023. The applicants are each charged with a number of counts on Indictment Number 236/2023, with the trial listed to commence on Monday, 5 February 2024.
2. [2]
   Both applicants brought the applications for a pretrial ruling pursuant to s 590AA of the Criminal Code and both applicants filed affidavit material in support of the applications. 
3. [3]
   Both applications were heard on Monday, 29 January 2024. On 30 January 2024, orders were made as follows with reasons to be published at a later date:

   1. Upon being satisfied that it is in the interests of justice and that there are special reasons for the purposes of s 614(3) of the Criminal Code, pursuant to s 615(1) of the Criminal Code, GZN and BYH be tried by a judge sitting without a jury for the trial on Indictment Number 236/2023. 
   2. The trial remains listed to commence on 5 February 2024.
4. [4]
   Following are the reasons for the orders made on 30 January 2024.

Alleged offending

5. [5]
   The applicant GZN is charged with seven offences arising out of two home invasions that occurred on 16 August 2021.
6. [6]
   The applicant BYH is charged with nine offences arising out of the same home invasions that occurred on 16 August 2021. Counts eight and nine are in respect of the applicant BYH only.
7. [7]
   The circumstances of the alleged offending are that the applicants entered a residence in Forest Lake and stole a car. They then drove in the early morning to an address in Coorparoo. It is then alleged that the applicants entered a residence carrying knives and were confronted by members of the house, being Rachel Kefu, Toutai Kefu and Joshua Kefu.
8. [8]
   It is then alleged that the applicants attacked and stabbed Mrs Kefu, Mr Kefu and Joshua Kefu. Madison Kefu also suffered a stab injury whilst trying to leave the house.
9. [9]
   Further, it is alleged that the applicant GZN suffered a stab wound himself and left the house and was taken to hospital by another co-offender who was driving the stolen car.
10. [10]
    The applicant BYH was apprehended by a neighbour, Mr Benjamin Cannon, whilst he was in the process of trying to leave the house. Mr Cannon is alleged to have held applicant BYH down until the police arrived. Mr Cannon also is alleged to have suffered a cut to his hand in the process of apprehending the applicant BYH. This is the subject of Count 8.
11. [11]
    The injuries suffered by Mrs Kefu, Mr Kefu and Joshua Kefu are particularly serious and required hospitalisation. Counts 4, 5, 6 and 7 on the indictment are in the alternative, namely attempted murder of Mrs Kefu, Mr Kefu, Joshua Kefu and Madison Kefu and alternatively malicious act with intent in respect of each of the complainants.
12. [12]
    At the time of the alleged offending, each of the applicants were approximately 15 years of age.
13. [13]
    The matter was listed for trial on 5 February 2024 and the parties were notified of the identity of the trial judge on 5 September 2023 when a notice of listing was emailed to the parties.
14. [14]
    Both applicants rely on evidence in respect of pre-trial publicity as the basis for the order sought.

Issues to be determined

15. [15]
    Sections 614 and 615 of the Criminal Code, relevantly state as follows:

“614  Application for order

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.
2. The application must be made under section 590AA before the trial begins.
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.
4. Subsection (3) does not limit section 615 or any other restriction on making a no jury order imposed by this chapter division.
5. The court may inform itself in any way it considers appropriate in relation to the application.
6. For subsection (2), the trial begins when the jury panel attends before the court.

615 Making a no jury order

1. The court may make a no jury order if it considers it is in the interests of justice to do so.
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. 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.
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. the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;
   2. 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. there has been significant pre-trial publicity that may affect jury deliberations.
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.”

16. [16]
    The ultimate issue to be determined on the applications is whether it is in the interests of justice to order that the defendants be tried by a judge sitting without a jury.
17. [17]
    An additional issue arises as the identity of the trial judge was known by the parties when the application was decided. Pursuant to s 614(3) of the Criminal Code, an order for a judge only trial may be made only if the Court is satisfied that there are special reasons for making it. Accordingly, a second issue arises as to whether there are special reasons for making an order. 
18. [18]
    The approach to be taken where both issues arise is a two-step process.^[1] Burns J in R v Pentland [2020] QSC 78 and Chief Justice Bowskill in R v Karran [2022] QSCPR 9 applied this approach. 

    1. Burns J found that it was in the interests of justice that a no jury trial order be made.^[2] Further, his Honour found special reasons on the particular facts including the delay between offending and the charge being brought, the age and medical condition of the defendant and a risk that the trial would be delayed if the order was not made giving rise to uncertainty about the disposition of the charge.^[3]

2. The Chief Justice determined the application at the first step as her Honour was not persuaded that it was in the interests of justice to make a no jury order and accordingly it was unnecessary to consider “special reasons”.^[4]

19. [19]
    The relevant authorities establish some general principles. These are helpfully summarised by Burns J in R v Pentland [2020] QSC 78 at [9(a)] to [9(n)]. I agree with the summary of these principles and will not repeat those principles in full here.
20. [20]
    Briefly, the principles to be applied include:

    1. The onus is on the applicants to persuade the Court that it is in the interests of justice for a no jury order to be made.^[5] This applies also in respect of “special reasons”.^[6]
    2. The discretion of the Court pursuant to s 615(1) of the Criminal Code is unfettered.^[7]
    3. The discretion is to be exercised without any preconception as to the preferred mode of trial.^[8]
    4. 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 issues of reasonableness, negligence, indecency, obscenity, or dangerousness.^[9]
    5. The overriding consideration is whether it is in the interests of justice to make the order.^[10]
    6. There is no definition of what is “in the interests of justice”. The phrase includes consideration of the interests of the community and the imperative of a fair trial.^[11]

7. The discretion to make a no jury order is a useful mechanism to avoid the possibility of an unfair trial.^[12]

8. The Court may inform itself in any way it considers appropriate in relation to the application.^[13]

21. [21]
    The applicants have complied with the procedural requirements for bringing the applications, including the requirements of rule 42A of the Criminal Practice Rules 1999 (Qld).
22. [22]
    It is then necessary to consider the evidence in respect of the two issues.

Is it in the interests of justice to make a no jury order?

23. [23]
    Both applicants contend that it is in the interests of justice to make the order sought as the evidence establishes that there is a risk that the significant pre-trial media coverage of this matter, along with the general media coverage relating to youth knife crime, will impermissibly affect jury deliberations in the trial.
24. [24]
    The evidence filed in support of the applications includes:

    1. Evidence of the public profile of Mr Kefu.  
       1. Mr Kefu is a well-known sporting figure, having played rugby union for the Australian Wallabies and the Queensland Reds. His public profile includes him being regarded as a “legend”. He is known widely, with him having a significant profile on social media platforms, as well as in the traditional media.^[14]
       2. Mr Kefu’s profile means that the alleged offending and the trial have greater public interest than other similar matters. This in turn means that the reporting is more likely to be remembered and recalled by jury members.
       3. Given Mr Kefu’s high profile, including his status as a “legend”, there is a risk that a jury member may be more willing to accept his evidence or to give his evidence greater weight than a person with a lesser or no profile.

2. Evidence of the media coverage of this matter. 
   1. The evidence demonstrates that the particular circumstances of the alleged offending have been reported extensively in the media, including print and television, from the time of the alleged offending on a regular basis up until recently. 
   2. The coverage includes both general reporting of the allegations but also more detailed and specific reporting of the particular facts of the alleged offending.
   3. The evidence includes media interviews with Mr Kefu, Mrs Kefu and Mr Cannon with detailed reporting of the events relevant to the alleged offending on at least three occasions^[15] and a “blow by blow” account of the alleged offending from the perspective of the Kefus in the print media.^[16] Additionally, the interviews include the key witnesses providing commentary on the youth justice system more broadly.^[17]
   4. The reporting on the alleged offending includes “sensational language”: for example, “brutal attack on family” and “terrifying home invasion”. 
   5. The reporting also includes alleged details which have no basis in the actual evidence relevant to the trial. For example, reports refer to an “axe” being used when there is no allegation of an axe being used at all.^[18] 

3. Evidence of media coverage of the issue of youth crime, and in particular youth knife crime, together with links to the alleged offending by the applicants. 
   1. There is currently intense media coverage of these issues and there is lobbying by various community groups in respect of these issues.
   2. The reporting also includes links between the alleged offending and the wider issues, including criticisms of the youth justice system. For example, a video dated 29 September 2021 contains an interview with Mr Kefu and Mr Cannon where they give a description of facts relevant to the alleged offending and also commentary on youth crime and the interview ends with a statement from the Leader of the Opposition in Queensland on the issue.^[19]

4. Evidence of reporting on the criminal history of the applicants.
   1. The reporting includes print articles referring to the applicants being on bail at the time of the alleged offending.^[20]
   2. The video dated 29 September 2021 includes comments by the Leader of the State Opposition in respect of a “youth crime crisis” and a “revolving door”. It is submitted that this suggests that youth offenders are recidivists. These comments follow on from the interview with Mr Kefu and Mr Cannon, leading to the inference that the applicants are recidivists.
   3. A video dated 28 September 2021 with an interview by Mr Kefu and Mr Cannon. This includes a detailed factual account by Mr Kefu of the alleged offending and commentary by Mr Kefu and Mr Cannon on the wider youth justice issues. Mr Cannon made comments from which it could be inferred that the applicants had relevant criminal histories and/or were repeat offenders,^[21] including:
      1. (A)
         youth offenders have chosen “crime as their trade”;
      2. (B)
         “you do it enough times, and you get allowed to do it again and again and again, you get good at it”; and
      3. (C)
         “these guys have done it many times, out on bail”.^[22]
   4. The same video includes commentary by a well-known television presenter, including “we went pretty hard on the bail laws and the fact that these people, some of them, have been before the courts before and been let off and reoffended”.

5. Evidence in relation to the reporting on Mr Cannon’s appointment to the Independent Ministerial Advisory Council as a “victim representative”.^[23]
6. Evidence of the results of a survey commissioned by Legal Aid Queensland in respect of the media coverage. 
   1. Reliance is placed on the results of the survey evidence including that the incident before the Court has received significant media coverage and including specific aspects relevant to the alleged offending, including those matters identified above.
   2. The Crown accepts that this evidence is admissible but submits that little weight should be given to the evidence on the basis that the survey undertaken has limitations. The results of the survey are not surprising given the pre-trial publicity. Even if little weight is given to the results of the survey, the evidence is consistent with inferences which are available on other evidence.

25. [25]
    The evidence establishes, and the survey evidence is largely consistent with, the following:

    1. The incident the subject of the charges has received significant media coverage.
    2. The reporting has included information about the applicants having prior criminal histories and being on bail at the time of the alleged offending.
    3. The media coverage was not restricted to the immediate aftermath of the incident but continued for over 2.5 years. This also includes recent commentary about the case by key Crown witnesses.
    4. The trial is scheduled to occur when the issue of knife violence by young people and the issue of the youth justice system more generally has become a major social and political issue. The trial is likely to attract significant media coverage.
    5. The complainant in Count 8, Mr Cannon, has spoken publicly about the incident on numerous occasions, including as recently as November 2023. These statements include details of the actions of the applicants, their previous offending and their bail status.

6. Mr Cannon now has a public role and profile as a spokesperson for “Voice for Victims” and as a member of the newly created Independent Ministerial Advisory Council.
7. Mr Kefu is a well-known rugby union player, and it could reasonably be expected that prospective jurors would have knowledge of him, and consequently, the incident that is the subject of the trial, prior to the trial.

26. [26]
    These factors in combination are such that even with the non-publication order that has been in place since presentation of the indictment and a jury being properly instructed, there remains considerable risk of impermissible deliberations of the jury.
27. [27]
    The Crown submits that the debate on youth crime and the reporting of crimes of notoriety in the community is a “legitimate topic of discourse in a democratic society exercising freedom of expression”. That may be the case, but consideration is required to be given to whether that discourse impacts a fair hearing and the interests of justice in any given matter before the Court.
28. [28]
    In the current case, the reporting goes well beyond reporting of general facts. The level and nature of the reporting give rise to a risk that a jury will not be able to ignore what they have seen and heard pre-trial. There is then the risk that a fair assessment of the evidence at the trial will be impacted.
29. [29]
    As recognised by Burns J in R v TAZ; R v SED (No 2) [2023] QSCPR 16 there will be cases where the reporting is so vociferous and the content so prejudicial that it would be asking too much of a jury to ignore reporting, even where they are instructed to do so.
30. [30]
    It is the “perfect storm” of factors in this case that gives rise to the real potential for prejudice. The risk of prejudice in this case is significant and it is that circumstance which gives rise to the additional concern that even strict directions may not adequately mitigate that risk.
31. [31]
    In the circumstances, I am not satisfied that in the absence of a no jury order that the defendants would receive a fair trial. Accordingly, it is in the interest of justice that the trial be heard by a judge sitting without a jury.

Are there special reasons to make a no jury order?

32. [32]
    I am also satisfied that even though the identity of the trial judge was known at the time the applications were decided, there were special reasons for making the order.
33. [33]
    The combination of the extent of the reporting and the specific nature of the reporting as outlined above would be capable of establishing special circumstances in the current case.
34. [34]
    There is a further basis to establish special reasons. In September 2023 the parties were advised of the judge allocated to hear the trial. Subsequent to that, the Independent Ministerial Advisory Council was announced on 30 November 2023 and Mr Cannon was appointed as a “victim representative who created the community group Voice for Victims following a violent home invasion at his neighbour’s property”.^[24]
35. [35]
    On 9 January 2024 there was further reporting relevant to the issues being considered in respect of the applications. The 9 January 2024 report stated that the Premier had met with representatives of “Voice for Victims” in an “effort to fix the crime issue”. In particular, it was reported that Mr Cannon had “threatened more protests” if the Premier was “unable to follow through on progress to address crime”. The reporting included that Mr Cannon had, in effect, given an ultimatum to the Premier to provide a response satisfactory to him.
36. [36]
    This more recent reporting meant that the concerns identified earlier in these reasons were refreshed and reinforced. The more recent reporting kept the earlier commentary alive but also potentially gave it increased status. The reporting on the appointment of Mr Cannon and the recognition given to him by him meeting directly with the Premier also increased the risk that a jury may give more weight to his evidence at trial.

37. [37]
    This more recent reporting in the context of the earlier reporting, amounts to special reason over and above the interests of justice considered above.