R v Chardon

Case [2015] QDC 59

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Chardon [2015] QDC 59

PARTIES:

THE QUEEN


v

JOHN WILLIAM CHARDON


FILE NO:

Southport DC 358 of 2014

DIVISION:

Criminal

PROCEEDING:

Pre-trial argument – section 590AA of the Criminal Code

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

19 March 2015

DELIVERED AT:

District Court, Brisbane

HEARING DATE:

25 February 2015

JUDGE:

O’Brien CJDC

ORDER:
  1. 1.        The change of venue application is dismissed
  2. 2.        The application for a no jury order is dismissed. 

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CHANGE OF VENUE APPLICATION – where the defendant’s wife has disappeared - where media coverage of the investigation into the disappearance has implied that the defendant may have been involved in some way in that disappearance – where there has been a degree of publicity surrounding the conviction and subsequent appeal of the defendant for other offences

CRIMINAL LAW – PROCEDURE – APPLICATION FOR

NO JURY ORDER – where the defendant’s wife has disappeared - where media coverage of the investigation into the disappearance has implied that the defendant may have been involved in some way in that disappearance – where there has been a degree of publicity surrounding the conviction and subsequent appeal of the defendant for other offences

Criminal Code (Qld), s 590AA, s 604, s 615
Jury Act 1995 (Qld)
R v Fardon [2011] QCA 317
R v Ferguson; ex parte A-G (Qld) [2008] QCA 227
R v Glennon (1992) 173 CLR 592
R v Patel [2012] QSC 419
R v Prisk and Harris [2009] QSC 315
R v Yanner (1998) 2 Qd.R. 208

The Queen v Georgiou and Ors: R v Georgiou and Anor; ex parte A-G (Qld) (2002) QCA 206

COUNSEL:

Mr AJ Kimmins for the applicant/defendant  
Mr MT Whitbread for the respondent Crown

SOLICITORS:

Toogood Lawyers for the applicant/defendant

Director of Prosecutions for the respondent Crown

  1. [1] There is presently an indictment before the Court charging the defendant with three offences of indecent treatment of a child and one offence of rape. By way of pre-trial argument pursuant to s.590AA of the Criminal Code the defendant now seeks an order that the indictment be transferred for trial in the District Court at Brisbane and/or alternatively that there be an order for a Judge alone trial.

    Background

  2. [2]          The principal basis for both applications derives from what has been described as the extensive adverse publicity that the defendant has received in various media outlets.

  3. [3]          The publicity referred to relates principally to the disappearance of the defendant’s wife in February 2013.  Mrs Chardon’s disappearance has resulted in an extensive Police investigation and news coverage of that investigation has implied that the defendant may have been involved in some way in that disappearance.  He has on occasions been referred to as a “suspect” although his denial of any involvement has also been widely reported.  In July 2014 the defendant was convicted in the District Court at Southport of six offences of rape and indecent treatment of a girl under the…

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AGLC
R v Chardon [2015] QDC 59
Case
[2015] QDC 59
Decision Date

CaseChat Overview and Summary

The defendant in R v Chardon is facing three charges of indecent treatment of a child and one charge of rape. The defendant has applied for a change of venue to the District Court at Brisbane or, alternatively, for a trial by judge alone. The applications are based on extensive adverse publicity, particularly concerning the disappearance of the defendant’s wife and his previous convictions and appeals for other offences. This publicity has led to concerns about the defendant's likelihood of receiving a fair trial in the District Court at Southport.

The legal issues the court needed to address were whether there was sufficient cause to change the venue of the trial and whether a trial by judge alone was warranted due to the level of publicity. The court considered the statutory framework and relevant precedents, including R v Yanner and R v Cattell, which establish the principles for changing venue and the discretion of the court in such matters. The court had to balance the principle that trials should ordinarily proceed in the district where the offence allegedly occurred against the need to ensure a fair trial for the defendant.

In dismissing both applications, the court found that while the publicity was extensive, it did not establish sufficient cause to warrant a change of venue or a trial by judge alone. The court held that the defendant had not demonstrated that there was a strong likelihood he would be deprived of a fair trial if the matter proceeded in the Southport District Court before a jury.

The court made two orders: the application for a change of venue was dismissed and the application for a no jury order was also dismissed.

Orders

Orders of the court

1. The change of venue application is dismissed

2. The application for a no jury order is dismissed.

Background

Background to the litigation

[1] There is presently an indictment before the Court charging the defendant with three offences of indecent treatment of a child and one offence of rape. By way of pre-trial argument pursuant to s.590AA of the Criminal Code the defendant now seeks an order that the indictment be transferred for trial in the District Court at Brisbane and/or alternatively that there be an order for a Judge alone trial.Background [2] The principal basis for both applications derives from what has been described as the extensive adverse publicity that the defendant has received in various media outlets. [3] The publicity referred to relates principally to the disappearance of the defendant’s wife in February 2013. Mrs Chardon’s disappearance has resulted in an extensive Police investigation and news coverage of that investigation has implied that the defendant may have been involved in some way in that disappearance. He has on occasions been referred to as a “suspect” although his denial of any involvement has also been widely reported. In July 2014 the defendant was convicted in the District Court at Southport of six offences of rape and indecent treatment of a girl under the age of 16 and those convictions and the subsequent appeal heard in February 2015 have also attracted a degree of publicity. There is no suggestion of any connection between those offences and the disappearance of the defendant’s wife. [4] The various articles which give rise to the present applications are exhibited to the affidavits of David Edward Fitzgerald sworn on 16 February 2015 and 19 February 2015. It is submitted for the applicant that the nature of this publicity is such that there is a strong likelihood that the defendant might be deprived of a fair trial if the matter were to proceed before a jury and/or if the trial were to proceed in the District Court at Southport.The Change of Venue Application [5] The principles applicable to an application of this nature have been considered on a number of occasions. In R v Yanner (1998) 2 Qd.R. 208, de Jersey J, as he then was, said at p.210-211:“In the interests of the orderly administration of criminal justice, there must be a primary understanding that a trial is to proceed in the court district in which the offence allegedly occurred. Section 63(1) of the District Courts Act 1967 should probably be read as assuming that. See also the discussion of Holmes J.A. in R. v Cattell (1967) 86 W.N. (Pt 1) N.S.W. 391, 395-396.The Court may of course nevertheless order that the venue be changed, in this case under s.63(2). The Court’s discretion, statutorily conferred, is unfettered. But obviously the burden must fall on the party seeking the change of venue to advance a sufficient reason why that should occur….. Each case falls to be considered on its own merits, in the manner I have described, and not with any preconceptions save a trial should ordinarily proceed in the court district of the alleged offence, removal being warranted where sufficient cause is shown.”

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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