R v Brady

[2009] QDC 48

[2009] QDC 48

DISTRICT COURT
CRIMINAL JURISDICTION

JUDGE EVERSON

THE QUEEN
v.

MICHAEL FRANCIS BRADY

CAIRNS

..DATE 04/03/2009

JUDGMENT

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HIS HONOUR: This is an urgent application pursuant to section

590AA of the Criminal Code that the trial listed as trial	1
number 1 next week before her Honour Judge Bradley take place before her Honour sitting without a jury. In the supporting affidavit of the defendant, he cites personal concerns with the jury process and also the costs of it as the basis for the

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application.

The defendant is charged with one count of unlawful wounding, which has arisen in the context of a troubled relationship between his son and himself. It is alleged that on 24 May

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2007, the defendant unlawfully wounded his son. I'm informed by the parties that the charge arose when the complainant son attended the defendant's residence to collect some of his
property. Ultimately, a dispute ensued and the defendant

grabbed a kitchen knife and slashed the complainant son.

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Section 614 of the Criminal Code provides for an application for a no jury order. Significantly, subsection (3) states, "If the identity of the trial Judge is known to the parties when the application is decided, a no jury order may be made

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only if the Court is satisfied there are special reasons for
making it." Mr Sumner-Potts submits that his client didn't
know the identity of the trial Judge at the time the
application was made. However, it is clear that the identity

of the trial Judge was known to the legal representatives for

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both parties at the time the application was brought, and
certainly the identity of the trial Judge is known now, when

the application is decided.

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On behalf of the Crown, Mr English submits that the grounds

for the application do not disclose special reasons for the	1
making of the application as required by section 614(3). The grounds for the making of the application have been further elucidated by Mr Sumner-Potts in his submissions. He submits that the defendant has concerns about how the jury is selected

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and the process of a jury trial, and that the defendant
doesn't wish issues which include aspects of his son's
behaviour and his relationship with his son to be the subject
of deliberation by a jury. He further submits that a no jury

order would most likely result in a more expeditious trial

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than a jury trial.

It is also submitted by Mr English that, pursuant to section
615(5) of the Criminal Code, it is likely that the trial will

involve a factual issue that requires the application of

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objective community standards, namely, the issue of the
reasonableness of the force used by the defendant giving rise

to the charge.

The institution of a jury trial is one of the cornerstones of

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our criminal justice system. It has evolved over many
hundreds of years. Although there is now provision for trials
of serious criminal charges to take place by a Judge sitting
alone, this provision is not to be used as a routine measure.

Amorphous concerns about the nature and cost of jury trials do

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not, in my view, present sufficient grounds for the bringing
of an application pursuant to section 614 of the Criminal
Code. As the identity of the trial Judge is known, it is also

necessary that the defendant demonstrate special reasons for

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the making of a no jury order. There is nothing in the

material before me that places the application within the	1
concept of an application founded on "special reasons".
It is important that juries determine the guilt of an accused person charged with a serious criminal offence, unless there

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are compelling or exceptional reasons which make it
inappropriate to proceed in this time-honoured way. Section
615 of the Criminal Code requires that the court consider that
it is in the interests of justice that a no jury order be made

and a number of considerations in this regard such as the

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length or complexity of the trial and a real possibilty of
retaliation against a juror are given as examples that may
justify the making of such an order. As I've indicated, such
circumstances are not presented before me in this application.

The application is therefore refused.

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