R v Pentland

The applicant in this matter, charged with one count of murder, applied for a no jury order pursuant to s 614 of the Criminal Code 1899. The issues arising for consideration were whether, in the current COVID-19 climate, it was in the interests of justice that a no jury order be made, and whether there were special reasons for making a no jury order. Burns J determined that a no jury order was appropriate.

Burns J

27 April 2020

The applicant’s jury trial had been listed to commence before Justice Martin in mid-July, and was set down for approximately five weeks. [2]. That order was made some four days prior to the direction that, as a precautionary measure in response to the emerging COVID-19 pandemic, all jury trials were suspended for the immediate future. Since that time, the matter of when jury trials will be resumed has been undecided. [3].

In a timely manner following the decision to suspend jury trials, the applicant filed an application for a direction or ruling pursuant to s 590AA of the Criminal Code 1899 (“the Code”) seeking a no jury order pursuant to s 614. The application was unopposed. [4].

The discretion to order a trial by jury alone

Sections 614 and 615 of the Code have been infrequently considered by the courts since Ch Div 9A of Pt 8 was inserted in the Code in 2008, and only three times in the Court of Appeal (see R v Fardon [2010] QCA 317, R v Kissier  [2012] 1 Qd R 353 and R v Sica  [2014] 2 Qd R 168). Having regard to the plain meaning of the provisions together with the main authorities, his Honour observed that several relevant principles may be seen to emerge ([9]), amongst them:

(a) an application for a no jury order may be made after the accused has been committed for trial (or charged on indictment) but prior to the commencement of a trial. The actual trial begins when the jury panel attends before the court;

(b) in circumstances where the Crown seeks a no jury order, the court may only make such an order if the accused consents, however the consent of the Crown is not required before the court may make a no jury order on the application of the accused;

(c) the court may make a no jury order if it considers it is “in the interests of justice” to do so: that takes precedence and the discretion is unfettered;

(d) the fact that the accused elects to have a trial by judge alone is less significant than 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;

(e) the court may make a no jury order if, in its view, the trial is likely to be “unreasonably burdensome to a jury”; or there is a real possibility of retaliation against, or intimidation of, a juror; or due to significant pre-trial publicity that “may affect jury deliberations”;

(f) 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”;

(g) the onus is on the applicant to persuade the court that it is in the interests of justice that that be the mode of trial;

(h) if the identity of the trial judge is known to the parties at the time the application is decided, a no jury order may only be made if the court is satisfied that there are “special reasons” for making it. That requirement alone does not limit the discretion;

(i) the court may inform itself in any way it deems appropriate in relation to the application.

In addition to the above matters, his Honour made three further observations: [11]–[13]:

1. The “default position” is trial by jury, but that should not “skew the exercise of the discretion”. If the applicant satisfies the court that it is in the interests of justice that the case proceed without a jury (and, where the identity of the trial judge is known, that there are special reasons for facilitating that), a no jury order should follow.

2. As his Honour Judge Rafter SC held in R v Hanna & McAllum [2019] QDCPR 50 at [48], “just because the trial will require an assessment of the credibility of … witnesses does not mean that trial by jury is the preferable mode”.

3. It is not necessarily preferable for the application to be determined by someone other than the trial judge (if known) and the avoidance of listing the trial before a judge if he or she has determined the application.

Was a no jury order warranted?

Noting that “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 ”, his Honour readily made the order sought in this matter. [18]. The reality was that the application was starkly different to most (if not all) prior applications for no jury orders since the only present mode of trial due to the pandemic is by judge alone. [19]. In circumstances where the accused not only consented but brought the application, the court was left with “no reason to think that a fair trial could not be secured before a judge alone as opposed to a trial before a judge and jury ” and it was in the interests of justice that the order be made. [20].

In disposing of the matter, for completeness his Honour also commented that although the identity of the trial judge was known when the application was decided, special reasons existed for making the order [21]. That was because the matter concerned a cold case investigation which the accused had been involved in for over 20 years, and there was some urgency in bringing the matter to trial since he was aged 71 and in poor health. In his Honour’s view, those matters, taken together, constituted special reasons in addition to the interests of justice. [22].

A de Jersey