R v BCM - [2014] QSC 321

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCM [2014] QSC 321

PARTIES:

THE QUEEN
v
BCM
(applicant)

FILE NO/S:

BS 494/14

DIVISION:

Trial Division

PROCEEDING:

590AA Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2014

JUDGE:

Ann Lyons J

ORDER:

I order that, pursuant to s 615(1) of the Criminal Code 1899 (Qld), BCM be tried by a judge sitting without a jury.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERAL – where the applicant is a juvenile and has been diagnosed with a Pervasive Development Disorder – where the accused is charged with attempted murder – what consideration should be given to the principles outlined in Schedule 1 of the Youth Justice Act 1992 (Qld) when considering an application by a juvenile for a trial by a judge sitting without a jury – whether it is in the interests of justice for the trial of the accused to be held before a judge sitting without a jury given the potential difficulties the accused will have in giving evidence and a jury will have in appropriately understanding his evidence

Criminal Code 1899 (Qld); ss 590AA, 614 and 615
Youth Justice Act 1992 (Qld); ss 8, 95(2), Sch 1

Arthurs v The State of Western Australia [2007] WASC 182; considered
R v Belghar [2012] NSWCCA 86; cited
R v Clough (2009) 1 Qd R 197; considered
R v Fardon [2010] QCA 317; considered
R v Kissier [2011] QCA 223; followed

COUNSEL:

R East for the applicant
S Farnden for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions for the respondent

The current application

The applicant, BCM, is charged on Indictment 494 of 2014 with the attempted murder of a fellow student, the complainant, on 29 August 2013 in the auditorium of their high school in Brisbane. He was 14 at the time of the alleged offence. He is currently 15 years old and he will turn 16 in December 2014. The matter will shortly be listed for a trial which is expected to take place in the first half of 2015. It is estimated that a trial before a jury would take about 5 days.

The trial must take place in the Supreme Court because of the requirements of the Youth Justice Act 1992 (Qld) (“Youth Justice Act”) despite the fact that the applicant was a child at the time the alleged offence occurred and will be a child at the time the trial is held. The offence of attempted murder is defined by s 8 of that Act to be a serious offence because it attracts a possible penalty of life imprisonment. Furthermore, it is an offence which is not within the jurisdiction of the District Court under s 61 of the District Court Act 1967 (Qld). In those circumstances, s 95(2) of the Youth Justice Act requires that “the child be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v BCM

Details

AGLC: R v BCM [2014] QSC 321
Case: [2014] QSC 321
Decision Date: 21 November 2014

CaseChat Overview and Summary

The case of R v BCM involved a juvenile accused of attempted murder. The applicant, BCM, had been diagnosed with a Pervasive Development Disorder, which raised concerns about his capacity to participate in a jury trial. The case was heard in the District Court of Queensland, where BCM applied to have his trial conducted by a judge sitting without a jury.

The central legal issue was whether it was in the interests of justice for the trial to proceed before a judge without a jury, considering the potential difficulties BCM would face in giving evidence and the potential challenges a jury would have in understanding his evidence. The court had to weigh the principles outlined in Schedule 1 of the Youth Justice Act 1992 (Qld) against the need for a fair trial.

The court determined that, given BCM's diagnosis and the nature of the offence, it was in the interests of justice to proceed with a trial by a judge sitting without a jury. The court found that BCM's condition would likely hinder his ability to effectively communicate and respond to questioning, which could lead to an unfair trial if conducted before a jury. The court also considered the potential for a jury to misinterpret or undervalue BCM's evidence due to his condition.

The court ordered that BCM be tried by a judge sitting without a jury, pursuant to section 615(1) of the Criminal Code 1899 (Qld). This decision ensured that BCM's rights and the need for a fair trial were balanced, while also taking into account the specific challenges posed by his condition.

Orders

Orders of the court

I order that, pursuant to s 615(1) of the Criminal Code 1899 (Qld), BCM be tried by a judge sitting without a jury.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v BCM [2014] QSC 321
PARTIES:	THE QUEEN v BCM (applicant)
FILE NO/S:	BS 494/14
DIVISION:	Trial Division
PROCEEDING:	590AA Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2014
JUDGE:	Ann Lyons J
ORDER:	*I order that, pursuant to s 615(1) of the Criminal Code 1899* (Qld), BCM be tried by a judge sitting without a jury.**
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERAL – where the applicant is a juvenile and has been diagnosed with a Pervasive Development Disorder – where the accused is charged with attempted murder – what consideration should be given to the principles outlined in Schedule 1 of the Youth Justice Act 1992 (Qld) when considering an application by a juvenile for a trial by a judge sitting without a jury – whether it is in the interests of justice for the trial of the accused to be held before a judge sitting without a jury given the potential difficulties the accused will have in giving evidence and a jury will have in appropriately understanding his evidence Criminal Code 1899 (Qld); ss 590AA, 614 and 615 Youth Justice Act 1992 (Qld); ss 8, 95(2), Sch 1 Arthurs v The State of Western Australia [2007] WASC 182; considered R v Belghar [2012] NSWCCA 86; cited R v Clough (2009) 1 Qd R 197; considered R v Fardon [2010] QCA 317; considered R v Kissier [2011] QCA 223; followed
COUNSEL:	R East for the applicant S Farnden for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions for the respondent