R v Chardon
[2015] QDC 59
•19 March 2015
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: |
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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 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] 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.”
[6] In that same case Muir J, as His Honour then was, referred to a number of authorities before saying at p. 215:
“The authorities canvassed above suggest however, that the following considerations are likely to be relevant:
The cost, expense and inconvenience involved in a change of venue including disruption to court schedules and the waste of court resources.
Delay which might be occasioned by a change of venue.
Ensuring that a fair trial is had and is seen to be had.
The system of administration of justice in this State which established court districts and enables the Crown to select the district in which criminal proceedings will be commenced.
That the result of acceding to the application will be to move the trial from the locality in which the offence was allegedly committed.
The weight, if any, to be given to those and other factors will vary from case to case.”
[7] In The Queen v Georgiou and Ors: R v Georgiou and Anor; ex parte A-G (Qld) (2002) QCA 206 the test enunciated in Yanner was approved. In the joint judgment of McPherson, Williams JJA and Atkinson J, the following passage appears at para [23]
“It is universally recognised that the test to be applied at the time of a pre-trial application for a change of venue is whether the risk of prejudice to a fair trial is so grave that no direction by the trial judge, however careful, could reasonably be expected to remove it. That is effectively the test derived from cases such as The Queen v Glennon [1992] 173 CLR 593, R v Yanner [1998] 2 QdR 208, Montgomery v HM Advocate [2001] 2 WLR 779, and Morris v The Queen, unreported, Supreme Court of Victoria, JD Phillips J, 16 September 1991.”
[8] In Georgiou, at para [32] the Court of Appeal also made reference to the reasoning of Mason CJ and Toohey J in Murphy v The Queen [1989] CLR 94 at 99 as follows:
“But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in R v Hubbert (1975) 29 CCC (2 d) 279 at 291:
‘In this era of rapid dissemination of news by the various media, it would be naïve to think that in a case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence’.”
[9] In R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at para [30] the Court made reference to the joint judgment of Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592 at 603. In discussing the possibility that jurors might be aware of and act on information acquired outside the trial, their Honours there said:
“Likewise, the suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent’s prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch (1987) 164 CLR at 74, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them.”
[10] In Glennon, after referring to the need for the trial judge to take steps to counter the effect of any prejudicial pre-trial publicity Brennan J said pp.614-615:
“Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced. In Munday (1984) 14 A.Crim.R. 456, Street CJ repeated an unreported passage from one of his Honour’s earlier judgments:
‘…it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury’.
If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial.”
[11] The news articles to which counsel for the accused has referred appear in the Brisbane Courier-Mail, the Gold Coast Bulletin and an on-line news outlet, The Brisbane Times. There are also a number of television news items. Of these several news outlets The Courier-Mail and The Brisbane Times are clearly Brisbane-based publications. The articles, on my reading of them, provide an account of Mrs Chardon’s disappearance and of the subsequent Police investigation that is essentially factual. There are occasions when the present accused is referred to as a “person of interest” or event as a “suspect” although other articles refer to “a number of persons of interest” and include denials by the defendant of any involvement in his wife’s disappearance. Certainly the nature of the publicity bears no comparison with the type of publicity which attached to the accused in cases such as R v Fardon [2011] QCA 317 and R v Patel [2012] QSC 419. The great majority of the articles identified were published 12 months or more ago. Mrs Chardon, as noted above, disappeared more than two years ago in February 2013.
[12] Given my assessment of these articles and having regard to the principles I have set out above I do not see the publicity in this case as being so prejudicial that there exists an appropriate level of risk to the defendant having a fair trial in the Southport jurisdiction. I consider that the application for a change of venue should therefore be dismissed. Any concerns, in my view, can be adequately addressed by a proper direction from the trial Judge and, as with Chief Justice Street in R v Munday, I see no reason to have other than confidence in the ability of 12 citizens to judge this case according to its merits and in accordance with the evidence as they will be sworn or affirmed to do.
No jury order
[13] Section 604 of the Criminal Code provides in effect that an accused person who pleads not guilty is deemed to have demanded that the issues raised by such plea or pleas shall be tried by a jury and is entitled to have them tried accordingly.
[14] In 2008 a new Division 9A was introduced into the Code to allow application to the court for an order that an accused person be tried by a Judge sitting without a jury. Section 615(1), which has application in the present circumstances, provides that the court may make a no jury order if it considers it is in the interests of justice to do so. Sections 615(4) and 615(5) then provide as follows:-
“(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-
(a) the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;
(b) 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;
(c) 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.”
[15] In R v Fardon [2010] QCA 317 at [81] Chesterman JA said this of the above provisions:-
“It follows that trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that be the mode of trial. If the Code expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles demonstrate why such an order is in the interests of justice.”
[16] The phrase “the interests of justice” as used in s.615(1) was discussed by Martin J in R v Prisk and Harris [2009] QSC 315 at [25] as follows:-
“The phrase ‘interests of justice’ is not susceptible of any precise definition and that, in itself, suggests that it is a concept which is to be assessed according to the type of case, the interests of the community and the imperative requirement of a fair trial. I agree with the description of Malcolm CJ in Mickelberg (1992) 8 WAR 236 that the interests of justice comprehend: the acquittal of the innocent, the conviction of the guilty, the public interest in seeing those things happen and the due administration of justice.”
[17] The present application is based entirely on the argument that the level of pre-trial publicity is such that it may effect jury deliberations in this matter. I have set out above my view that there is no reason to have other than confidence in the ability of a jury to judge this case according to its merits and in accordance with the evidence. Any potential prejudice in my view can be adequately dealt with by appropriate direction from the trial Judge. In any event, as the Court recognised in Ferguson at para. [48], there are other provisions of the Jury Act aimed at protecting an accused person’s right to a fair trial should that be thought necessary.
[18] The present case does not seem to be one of particular or unusual complexity. The trial will involve essentially an assessment of the credibility and/or the reliability of the Crown witnesses and of the evidence which they give. That in my view is classically a jury issue, and in the absence of any other special feature I see no reason why it is not capable of being resolved here by a properly instructed jury.
[19] I therefore refuse the application for a no jury order.
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