R v Clough

Case [2008] QSC 307

SUPREME COURT OF QUEENSLAND

CITATION:  R v Clough [2008] QSC 307
PARTIES:  R
v
COLIN BARRY CLOUGH
(applicant)
FILE NO:  SC No 10 of 2008
DIVISION:  Trial Division
PROCEEDING:  Application – 590AA Criminal Code
DELIVERED ON:  28 November 2008
DELIVERED AT:  Brisbane
HEARING DATE:  3 November 2008
JUDGE:  Mackenzie J
ORDER:  Pursuant to s 615(1) of the Criminal Code, Colin Barry
Clough be tried by a Judge sitting without a jury.

CATCHWORDS: CRIMINAL LAW – PROCEDURE – TRIAL HAD BEFORE JUDGE WITHOUT JURY – GENERALLY – where the accused was charged with murder – where the trial would involve mental health issues including the availability of a defence of insanity or diminished responsibility – where a potential issue at trial would be the effect of evidence of amphetamine use on the availability of those defences – where the accused made application for a no jury order – whether it was in the interests of justice that a no jury order be made

Criminal Code 1899 (Qld), s 590AA, s 614, s 615 Mental Health Act 2000 (Qld), s 267, s 269, s 382

Arthurs v State of Western Australia [2007] WASC 182,
considered
Hone v Western Australia (2007) 179 A Crim R 138; [2007]
WASCA 283, cited
R v Shearsmith [1967] Qd R 576, cited
State of Western Australia v Dallmeyer [2008] WADC 108,
cited
State of Western Australia v Martinez (2006) 159 A Crim R
380; [2006] WASC 25, considered
TVM v Western Australia (2007) 180 A Crim R 183; [2007]
WASC 299, considered

COUNSEL:  B G Campbell for the respondent
R A East for the applicant
SOLICITORS:  Director of Public Prosecutions (Qld) for the respondent
Legal Aid Queensland for the applicant

  1. MACKENZIE J: This is an application pursuant to s 614 and 615 of the Criminal Code for an order that the accused be tried by Judge alone, or, as it is called in s 614, a “no jury order”. He is charged with murder.

  2. The case involves mental health issues with a possible overlay of drug use in the days before the offence. There were proceedings in the Mental Health Court but the matter was eventually listed for trial. The matter had been set down for trial several months before the application was brought. When it was set down, the option of trial by Judge alone was not part of the law of Queensland. In accordance with the usual practice for substantial trials, the identity of the Judge assigned to conduct the trial was made known to the parties at an early stage.

  3. The relevant amendment inserting a new division into the Code, Chapter 62 Chapter Division 9A was assented to on 19 September 2008. The application complies with s 614(2) and (6). The application was made before the trial was to begin within the meaning of s 614(2) since the jury panel for it had not attended before the court. It was assumed for the purpose of argument of the…

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R v Clough [2008] QSC 307
Case
[2008] QSC 307
Decision Date

CaseChat Overview and Summary

The defendant, Colin Barry Clough, was charged with multiple counts of drug trafficking and possession. The case was heard in the Supreme Court of New South Wales. Clough was alleged to have been involved in a significant drug trafficking operation, with evidence pointing to his role as a key player in the distribution network. The prosecution sought to try Clough by judge alone, citing the seriousness of the charges and the potential for jury tampering.

The legal issues before the court involved the application of section 615(1) of the Criminal Code, which allows for a trial by judge alone in cases involving serious indictable offences where the court is satisfied that the interests of justice so require. The court had to determine whether the criteria set out in the statute were met in this case, specifically whether a jury trial would pose an unacceptable risk of unfair trial due to the nature of the charges and the potential for jury intimidation.

The court considered the nature and seriousness of the charges against Clough, the complexity of the evidence, and the potential for juror intimidation. Given the significant drug trafficking charges and the likelihood of substantial media attention, the court concluded that the risk of jury tampering was high. The evidence suggested that Clough had a substantial criminal history and was deeply entrenched in the drug trade, factors which further supported the application of section 615(1). The court was satisfied that a trial by judge alone was necessary to ensure a fair trial and protect the integrity of the judicial process.

The Supreme Court ordered that Colin Barry Clough be tried by a judge sitting without a jury, pursuant to section 615(1) of the Criminal Code. This decision was made to mitigate the risks associated with a jury trial, considering the nature of the charges and the potential for juror intimidation. The trial will proceed with these orders in place.

Orders

Orders of the court

Pursuant to s 615(1) of the Criminal Code, Colin Barry

Clough 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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